Resuming joinder discussion...

Rule 24: intervention - outside party decides they want to be part of lawsuit.
Rule 23: class actions
  - Buffalo Creek was *not* brought as class action. It was practically in this case to join all members; wouldn't be practical, for example, in case of "all food stamp recipients in Massachusetts." 

Discovery

Under Rule 11, you need to do reasonable inquiry under the circumstances.  For example, if statute of limitations expires tomorrow, you might only do a day's worth of research.  Then, file case.

Rule 8: Possibly truncated complaint.

Then, get everything you can, build case, rebut opponent's case (to win), position yourself for settlement. Want to expedite trial as much as possible--limit facts that you have to take to trial.

In order to expedite trial, go through process of discovery: Rules 26-37.

Rule 26a: mandatory disclosures.

Plaintiff/defendant: use discovery techniques to ask for information. Can ask judge to compel discovery, then to give sanctions.  "Judges hate discovery."  They want parties to work out discovery between each other.  Need to strategically work through when you want judge's help.

Butler v. Rigby
  - Deposition of 2 hospitals, hospital does not want to give information as confidential medical information
  - Magistrate Judges--appointed by district courts, act as assistant judges, all rulings must be affirmed or overruled by judge.
  - In Dispute:
    - total # of patients referred by law firms
    - names of all current patients
  - Protective order--limits discovery
  - Deposition can be used against non-parties (hospitals in this case.)
  - Duces Tecum - demand to hand over documents.
  - Number of patients referred by lawyers to hospitals -- irrelevant and burdensome
  - Names of current patients -- privileged
  - Judge sustains Magistrate Judge's decision to allow number of patients referred but not names of current patients.  This privileged information trumps 26(b)(1).

Rule 12 Motions: End case without going to merit of claims.
Answers: Go to merits, ends in trial or settlement.
Rule 56: Summary Judgment
  - Example: someone applies for food stamps, is refused because car is too valuable, state has regulation that limits eligibility, lower value than federal standard. No questions of facts. Could move for summary judgment to get decision.
  - Houchens v. American Home Assurance Company
    - Insurance company files motion for Summary Judgment, claiming wife did not provide sufficient information as to accidental death. Evidence includes immigration record that husband entered Thailand but never left--document filed.
    - Different from Rule 12(b)(6)--document has already been filed.
    - Had non-binding precedent from previous disappearance cases, suggesting death was accident.
    - Burden is on plaintiff to prove accidental death. If chances of accidental vs. non-accidental death are equal, judgment goes for defendant.
    - Judge cannot 'decide fact'--if evidence is questionable, then case should go to jury.
    - Directed Verdict: 'no reasonable jury could make this decision'.
  - Seventh Amendment (Bill of Rights): Right to a jury.
  - Judge decides questions of law:
    - Evidentiary rules
    - Motions

Norton v. Snapper Power Equipment
  - Judge issued directed verdict on some charges--before jury.
  - Judge can reverse jury verdict--issues judgment notwithstanding the jury.
  - Strict liability claim is stronger than negligence and warranty claims, so issues directed verdicts on these claims, but wanted jury to decide.
  - jnov - judge is not disagreeing with jury, but saying he erred in not issuing a directed verdict earlier.  Can only be done if there has been a motion for directed verdict at beginning.

Claim Preclusion - Res Judicata
Issue Preclusion - Collateral estoppel

Need to have two cases

Rush v. City of Maple Heights
  - Rush v. City -- Property (judgment for plaintiff)
  - Rush v. City -- Personal
    - Wants to use issue of negligence from first case--issue preclusion
    - City wants to use claim preclusion -- need to bring all claims in one suit, no second shot
    - Vasu v. Kohlers says you can have two cases for person and property.  Case was overruled by higher court--now Vasu only applies to insurance cases.
  - Claim Preclusion does not apply to different parties, doesn't matter if it's the same situation or same transaction (i.e., Mr. Rush could sue separately).
  - Party Autonomy vs. Judicial Efficiency.

Appeals
  - Party who lost must appeal
  - Can appeal injunctions (interlocutory orders)
  - 1291, 1292(a), 1292(b)
  - 1292(b) Judge certifies question.
  - Must otherwise be final decision.

Tensions
  - "Truth" v. Advocacy
	- Disclosure v. Withholding
	- Rule 8 v. Rule 11
	- Party Autonomy v. Judicial Efficiency
	- Who has the power?
	  - Rules weigh in
		- Jury/judge
Historical perspective on pleadings

British Common Law - Writs
	- Formalistic
	- Need to pick writs, narrow case to one issue or one fact
	- Writ --> response -> response to response
	- If plaintiff chose wrong writ to start, would lose case, no means to amend
	- Writs bore very little relation to facts, highly formulistic
	- No alternative pleadings, need to go with standard form
		- Local v. Royal Cases --> King's peace
		- Royal Cases look like criminal cases but are filed as civil cases
		- In civil ligitation, you are searching monetary reparations
	- When planitiff chose writ, defendant has very limited responses
		- Demurrer v. Plea
			- Demurrer
				- Something wrong with legal claim itself
				- Looks like Motion to Dismiss--12(b)(6)--failure to state a motion upon which relief can be granted
				- Certain rule 12 motions need to be made in certain ways--12(g)(h) have restrictions
			- Dilatory Plea v. Plea at Bar
			- Dilatory Plea (p. 390 - 1, 2, 3)
				- Rule 12 motion to dismiss on basis on lack of jurisdiction or improper venue, 12(b)1-5,7
			- Plea at bar:
				- Admitting or denying truth of allegations
				- Traverse
					- Denial - 8(b)
				- Confession and Avoidance
					- Affirmative Defense -- Rule 8c
	- Common Law vs. Chancery Court
		- Chancery Court can grant injunction, common law can grant only monetary relief
		- Injunctions were called 'equitable courts' -- equity
		- Need to show you have an inadequate remedy in common law royal court in go to chancery
		- Chancery Court (as opposed to Civil)
			- Testify under oath
			- Join claims/parties
			- No jury
			- Subpoena power--can force parties to testify
			- Written testimony only
			- Pleadings more detailed, less formulaic, more tied to facts of case
			- Need to prove inadequate remedy at law with monetary damages
		-* Under Rule 1: ...all rules of a civil nature, whether cognizable as cases at law or in equity.
			- Not true in all states.  Illinois, for example, has chancery courts for granting injunctions.
		-* Rule 2: one form of action=civil action, covering both money damages and injunctions, getting rid of writs
		-* Rule 8a: Can now pick any plea as response rather than being highly restricted

Code Pleading
	- Move away from formulaic structure, need to plead _facts_.
	- Need to allege every element of Cause of Action.
	- Majority of states now do claim pleading, but majority of people still live in States with Code Pleading (Federal Court uses Claim Pleading)
	- State Courts hate code pleading, but legislatures have not changed system in Illinois, California, New York, etc..
	- Evidentiary facts, ultimate facts, conclusory facts
	- Under Code Pleading, must plead ultimate facts.
		- Evidentiary facts are too specific, conclusory facts are too vague, need to research precedent for what is considered each type of facts.
	- As judges and lawyers dislike system, they are allowing more and more to be held as 'ultimate facts', creeping towards claim pleading.
	- Federal Rules now require only 'short and plain statement', rather than alleging every element of Cause of Action.
	- Code Pleading might weed out some frivolous lawsuits, weighs in for defendant, promotes judicial efficiency, reduces facts in dispute
	- Claim Pleading--allows for discovery, "truth", weighs in on Plaintiff's side, more inclusive, more open.

Buffalo Creek Film
	- What are limits of litigation?
	- Did plaintiffs really benefit from litigation?
	- What are limits of procedure?
	- Could litigation have been better framed to achieve results for plaintiffs?
	- Non-litigation strategies that could have been explored?
	- What do we want procedure to accomplish and how do we measure if it's accomplishing what we want?
	- Problems
		- Coal companies (owned 3/4 of land) wouldn't let people back on their land
		- Eminent domain for highway
		- Random trailer park assignments
	- Could order coal companies to allow people back on their land, to build schools and hospitals
Pleadings continued...

Some states retain code pleading; while this is minority of states it represents a large portion of population. Federal government and many states do claim pleading under Rule 8.

California forms (p. 403) are hybrid between writs and code pleading, check boxes.

People ex rel. Department of Transportation v. Superior Court
	- Demurrer -- no facts disputed, 12(b)(6) - "So what?"
	- Lower court overruled motion for demurrer
	- 1291 final order, 1292 injunctions are appealable, if lower court certifies decision. Ordinarily decision could not be appealed.
	- In California, writ of mandate can be used to appeal specific issue/motion, in this case that forms are non-demurrable.
	- In Code Pleading, need to include 'facts constituting cause of action.'  Need to state 'ultimate' facts (not evidentiary, not conclusory).
	- Statement of facts to constitute cause of action:
		- Department of Transportation negligently designed highway without median barrier.
		- As direct result of design accident occurred.
		- Defendant should have foreseen this since accident wouldn't have happened if there were a barrier.
		- Insufficient barrier/divider
		- allowed head-on collision
		- reasonable risk that collision would happen

Haddle v. Garrison
	- Georgia (claim pleading state)
	- Haddle is suing under Civil Rights Statute of 1871 (under statute 1985).
	- Haddle claims he was fired after testifying before a grand jury concerning medicaid fraud.
	- Case is in Federal Court due to Federal Question (1331)
	- Rule 8(a)(1) need to state Subject Matter jurisdiction
	- Also: supplemental jurisdiction -- pendant (attached) to other jurisdiction.
	- Lower court rules there is no personal or property damage
	- Although Haddle didn't testify, he did attend, which is equally protected.
	- Even if defendant submits note that plaintiff quit rather than was fired, defendant cannot submit 12(b)(6) motion, since 12(b)(6) is based on complaint and is decided on whether a claim for which relief can be given has been stated.
	- Employee is employee-at-will.  Under 1985, needs to be 'injury to person or property': is at-will job property?
		- Under district court, at-will job does not give property right, no constitutional protection. Binding precedent from 11th circuit decision.
		- 11th circuit affirms per curiam.
	  - Supreme court accepts case as there is a split between circuits (wants uniformity).
	- Even if you don't have 'property' that would trigger procedure, you can still say at-will job constitutes 'property' in 1985.
	- Job is property interest for the purposes of 1985, rather than as a constitutional due process right that triggers procedural.
	- 12(b)(6) can go to both inadequate pleading (DOT, above), or inadequate definition of terms (misdefinition of property).
	- Decision based on tort law idea of property

Buffalo Creek Complaint
	- 8(a) 'short and plain statement'
	- 22 page complaint
	- Educate judge, defendant
		- Promote possible settlement
		- Defendant has to answer on every point; if defendant admits some points, lessens discovery time, trial time, etc..
	- Paragraphs 1-2: Alleging diversity jurisdiction, meeting 8(a)(1)
	- 'Cause of Action' pleading--look to practice of court to see best pleading method
	- Paragraph 61: setting stage for injunctive relief.  No adequate remedy at law ('chancery has to give equitable relief because common law damages are insufficient').

Under Rule 8, you have choice of filing complaint like Stern's in Buffalo Creek, or a short and plain statement of complaint.

Business Guides v. Chromatic Communications Enterprises
	- 10/31/86 file case, motion for temporary restraining order (emergency injunction)
	- 11/4/86 clerk calls plaintiff's lawyer, asking to specify which seeds are inaccurate.  Plaintiff retracts 3 seeds.  Clerk discovers on phone in one hour, that 9 of 10 alleged seeds did not contain inaccurate information.
	- 11/7/86 hearing on temporary restraining order, plaintiff files new affadavit, retracting one more.
	- Judge denies Temporary Restraining Order, refers matter to magistrate to see if there is a violation of Rule 11. Court can order Rule 11 even without motion from parties.
	- "standard of conduct under Rule 11 is one of objective reasonableness", court claims that it is clear that rule was violated.

Religious Technology Center v. Gerbode
	- "Safe harbor" provision--21 days notice before rule 11 motion is filed with court.
	- 20 days to answer complaint--need to file answer even if you consider complaint to be frivolous
	- Could file 12(b)(6) motion instead of answer--tolls time to answer

If you waive personal process, 60 days to answer.
Rule 11 sanctions continued...

Religious Technology Center v. Gerbode (p. 427-431)
	- To decide on sanctions, court asks whether sanctions would deter further abuse.
	- Look at history of parties and litigation.
	- P. 428, III.A., look at Advisory Committee's Notes.
		- Rules, Statute 2072--Rules of Procedure and Evidence; Power to Prescribe = Rules Enabling Act
		- 2072a - Gives Authority to Supreme Court to do Federal Rules of Civil Procedure
		- 2072b - Such rules shall not modify substantive rights.
		- No Rule has ever been found to violate 2072b
	- Advisory Committee submits Rules to Standing Committee, which submits to Judiciary Committee, which submits to Supreme Court, then rules are sent to Congress.  If Congress does not act within 7 months, Rules are enacted.  If Supreme Court found a rule to violate 2072, they wouldn't send it to congress.
	- Looking to Advisory Committee Notes is analogous to looking at legislative intent in committee notes, etc.. for interpretting statute.
	- Part of attorneys fee goes to opposing party, rest goes as fee to court, due to 'long and acrimonious history' of litigation.
	- 1991 amendment prohibits holding party liable for 11(b)(2) violation but still can be held liable for violations of other parts of rule.
	- 1993 entire law practice in addition to signing attorney can be help liable

If attorney *later* discovers would have violated 11, cannot 'later advocate' for motion, but does not have to retract or amend.

Tension between Rule 11 and Discovery (and earlier tension between Rule 8 and Rule 11).

Different rule covers sanctions in Discovery.

Olsen v. Pratt & Whitney Aircraft
	- District court rules claim is preempted by ERISA
	- Doctrine of Preemption: certain areas of law covered entirely by Federal Law
	- Appeals Court rules on 9(b) -- complaint was not specific enough -- interpretation of 2nd circuit of 'stated with particularity'.

Why particular requirements on fraud?
	- Could 9(b) violate 2072b?
		- Judge can rule that 2nd circuit has misinterpreted rule 11 in this case and overrule interpretation.

42 USC 1983 permits suit against those who act to violate federal constitutional or statutory rights, acting 'under color of state law'.

Prior to Leatherman, courts required 'heightened pleading' for 1983 claims.

Do 1983 (civil rights) case require something other than Rule 8(a) requirements?
	- Relaxed pleadings would cause expenses to municipality and/or state officers
	- Want state officials to 'do their job', don't want them spending time and worrying about court action
	- Connections already exist between courts and officials, may not want to favor that any further
	- Municipal Liability
	- Official Liability
		- "Officially"
		- Personally
			- Qualified Immunity

	-& Read whole Leatherman lower court opinion, judge wants to indicate that he is bound by 11th circut precedent but does not agree with rule

	- Official capacity - usually trying to change defendant's behavior
	- Personal capacity - going after their pocketbook

Leatherman
	- Defendant Municipality
		- Municipalities are not responsible for their employees
		- This is not a heightened pleading standard, Rule 8(a) is fine, but need to demonstrate that behavior is connected to policy or custom (that it constitutes repeat behavior).  Plaintiff has not articulated elements of claim by not showing that action has occurred over and over
	- Supreme Court Rules that under 9(b) only fraud and mistake claims require particularity. Otherwise, 8(a) applies.
	- In Branch v. Tunnell, Supreme Court has not been specific with respect to individual government officials in terms of heightened pleading.

Gomez v. Toledo
	- Rather than specificity of complaint, case deals with burden of proof
		- Burden of pleading: actual complaint/answer
		- Burden of production: is there enough evidence for case to go to reasonable jury?
		- Burden of persuasion: convincing jury/judge
	- Usually three burdens follow one another.
Burden of pleading usually leads to burden of production and burden of persuasion...

Elements of plaintiff's case (claim pleading): causation, but not contributory negligence. 

How to determine burden:
	- Legislation
	- Legal History
	- Access to Information

1) Persons shall be liable for injuries to others caused by failure to take reasonable care; provided that no person shall be liable if the plaintiff's own negligence was the primary cause of the injury.

2) A person who is not herself negligent but who is injured by the negligence of another, has a cause of action against the injured.

	- First statute requires defendant to raise affirmative defense, whereas second requires plaintiff to prove that she was not negligent.  I.e., burden is on plaintiff in (2), on defendant in (1).

Gomez v. Toledo

	- 1983 -- person acting under 'color of the state', violates federal statute or constitution
	- Police officer fired without hearing, rehired, sues for failure to have hearing (due process)
	- Immunity -- question of who has burden or proving immunity or non-immunity
	- District court rules that the plaintiff has burden of alleging defendant's bad faith
	- Leatherman case dealt with pleading with specificity, Gomez deals with whether you have to plead an element in any form
	- Supreme Court rules that defendant has burden of proving good faith
		- Access/Knowledge of Facts
		- 1983 sets out elements
	- Plaintiff did not allege Bad Faith as this might give him burden of production and burden of persuasion

In criminal case, burden is generally on State.  With Civil Case, the state, rules, etc., allocate burdens, although plaintiff has most of burden.

For all elements of case, need to determine which the plaintiff has burden of pleading, then allege something for each element.  Other than for fraud, you don't have to allege heightened pleading, but do need to plead 'something'--allege negligence, injury, etc..

Burden of Production: by the time you go to fact-finder, you have presented sufficient evidence so that a reasonable jury could find in your favor.

Waiver or Preservation of Certain Defenses
	- Rule 12g and h--if you make a motion under Rule 12 but omit rule 12 defenses available at that time you lose your chance (except those in h2)
	- Once you file a motion, if you don't raise as described 12(h)1, you lose your chance.  If you don't make motion, you can include 12(h)1 in your answer.
	- Subject Matter Jurisdiction -- can be raised at any time, anywhere

Zielinski v. Philadelphia Piers, Inc. (p. 457)


Special appearance--only here to challenge personal jurisdiction--12(b)2--i.e., you don't have authority to have me here.

_Zielinski v. Philadelphia Piers, Inc. (continued)_
139 F. Supp. 408 (E.D. Pa. 1956)

Fork lift owned by PPI, was employed by CCI.

Federal Rules are not inclusive.  Plaintiff makes up motion that PPI owns company of which Zielinski was employee.

Example of 'motion to advise judge on the status of the case'.

Defendant filed answer with General Denial.

Sandy Johnson deposition, under oath, says "I am employee of PPI" in presence of PPI lawyer, does not correct Sandy Johnson's testimony.  Also, in deposition, defendant represents that brief investigation was turned over to company's insurance company, saying that they were not employer.

No technical violation of Rule 11
	- PPI signed document saying they didn't own company, which was true.
	- Under 8(b), need to deny 'in good faith' and 'fairly meet substance of the averments denied'.
	- Defendant did not fairly meet substance of the averments denied--appeared to deny negligence

Even though there was not a technical violation of Court 8(b), the denial is still deceptive, and it is too late to sue CCI (Statute of Limitations), so Court decides to accept PPI as employer as truth (even though it's false).

But--insurance company is same for CCI and PPI and knew about case.  This fact cannot go before jury--fact has been decided as 'a matter of law'.

Questions on P. 463
	- 5a) need to affirm even if it is 'impossible' to prove, under 11(b).
	- 5b) can deny under 11(b)4.  Likewise with 5c).

_Layman v. Southwestern Bell Telephone Co._
554 S.W. 2d 477 (Mo. Ct. App. 1977)

Rule 8(c): Affirmative Defense
	- Result of denial and affirmative defense both make defendant not liable to plaintiff, neither is to 'benefit' defendant.  Denial rejects plaintiff's case/facts, affirmative defense="yes, but..."

Most cases do little or no discovery as discovery is expensive; thus plaintiff's ignorance of easement is not incompetence.

Rule 8--'notice pleading'
	- Each element of rule 8 to prepare other party, 8(c)--if you have an affirmative defense, it should be raised in pleading.

Rule 55.08 (p. 465) in Missouri similar to 8(c).  8(c) specifies license as affirmative defense, plaintiff will argue that easement is similar to license, but defendant could argue that rule would have included easement if they wanted it.

	-* Absence of word can be used to say rule drafters didn't intend for word to be included, or to say it's similar to something included

Can you do a denial and an affirmative defense?
	- Can't deny something that you admit in affirmative defense, "I wasn't there, but if I were, I wasn't negligent".
	- Can say: "I didn't hit you, you hit me, and even if I hit you, you were also negligent."

Rule 7(a) -- no response to answer (denial/affirmative defense) unless ordered by court

_Beeck v. Aquaslide 'N' Dive Corp. P. 471_
562 F.2d 537 (8th Cir. 1977)

Defendant's amendment to answer--defendant wants to amend what they admitted (that they manufactured water slide) to a denial

One year later president of company goes to see slide, realizes it is not their slide, moves to amend to deny. Statute of limitations is expired.

Is this a 'reasonable inquiry under the circumstances'? Would this be a Rule 11 sanction?
	- Sanction could be refuse to allow defendant to amend

Rule 15(a) allows amendment 'when justice requires'.

15(c) Relation Back--amend complaint going back to original complaint.

_Moore v. Baker (p. 477)_
989 F.2d 1129 (11th Cir. 1993)

	- Court denies motion to amend back to original complaint
	- Plaintiff wants to add malpractice to lack on informed consent complaint
	- Facts are not the same for amended complaint and original complaint.
	- Court contrasts Azarbal v. Medical Center of Delaware where malpractice was amended to include lack of informed consent; thus court reasons lack of informed consent might fit into malpractice more than the reverse.

_Bonerb v. Richard J. Caron Foundation (P. 479)_
159 F.R.D. 16 (W.D.N.Y. 1994)

...can bring in CCI in Zielinksi but not real manufacturer in Beeck due to limit in 4(m) referenced in 15(c)3.  Real party needs to have been served notice within 120 days of claim.
Subject Matter Jurisdiction, Personal Jurisdiction, Venue, Joinder are four different pieces you have to look at as a package in determining whom to sue and where to sue

28 USC 1367: Supplemental Subject Matter Jurisdiction

Joinder of Claims

Affirmative Defense -- Fraudulent misrepresentation is an affirmative defense, gets defendant off the hook but no damages; counterclaim could get damages for defendant.

Compulsory Counterclaims -- need to raise counterclaim in same complaint or you lose opportunity.  Needs to arise out of same transaction or occurrence.

Need to have subject matter jurisdiction for every claim in case; if there is compulsory counterclaim supplemental subject matter jurisdiction (1367) can come into play; if counterclaim is permisive, then you need another basis for subject matter jurisdiction.

Truth in Lending Act -- violator is liable for three times finance charge.

_Plant v. Blazer Financial Services_ (895)
	- Plaintiff is suing under federal law (Truth in lending act), thus subject matter jurisdiction lies in federal court
	- Defendant has counterclaim for unpaid balance.  If this lies in the same transaction then this becomes compulsory counterclaims, and you get supplemental jurisdiction, and counterclaim can be brought in federal court.  Otherwise, you need some other basis for subject matter jurisdiction.  In this case, no other basis, so if court rules this is not the same transaction, then defendant cannot make counterclaim.
	- Four criteria (p. 896) for evaluating whether claim and counterclaim arise from the same transaction
	- Court decides loan as same transaction gives ride to both claims
	- If court rules outstanding debts to be compulsory counterlaims then it effectively eliminates lawsuits from low-income population with high default rate as balance owed will be more than triple damages on finance charges.

Joinder of Parties

Rule 20 -- same transaction occurrence or series of transactions or occurrences, and question of law or fact common to all parties

_Mosley v. General Motors Corp._ (p. 904)

	- Frequently, one party will file motion with judge to have question certified by higher court, making argument under 1292 (interlocutory decisions, p. 303 of FRCP).
	- Lower court rules to split 10 plaintiffs into 10 different cases.  Appelate court reverses lower court's decision, rules plaintiffs can stay together as it arises out of the same discrimination in the company.
	- Appeals court is making a substantive determination in that they believe there is a policy that unites 10 plaintiffs--under the guise of determining permissive joinder under rule 20, court is weighing in on the side of a discriminatory policy.
	- Use Rule 13(a) compulsory counterclaims to determine 'same transaction and occurrence' for Rule 20.

_Watergate Landmark Condominium Unit Owner's Association v. Wiss, Janey, Elstner Associates_ (p. 911)

	- Real Estate Firm (Wiss, Janey, Eltner) files a cross-claim against the engineering firm, and third-party claim against construction firm (Brisk Waterproofing Company).
	- Real Estate Firm files 3rd party impleader under Rule 14 against Brisk.
	- RE becomes third-party plaintiff against Brisk as third-party defendant
	- Derivative Liability -- if real estate firm is found liable then third-party defendant (Brisk) has to pay third-party plaintiff
	- Countervailing priority of 'plaintiff autonomy' vs. 'judicial efficiency'--plaintiff wants to be able to choose defendants
	- Limited circumstances for when plaintiff can't chose defendants are Rule 14 and 19.
	- Engineering firm cannot bring in Brisk because case is *not* derivative liability.  In derivative liability, defendant claims "if me, then him", otherwise, defendant needs to make denial: "him, *not* me".
	- If Condo assocation had sued construction firm, construction firm could bring in engineering firm as third-party defendant, claiming they were just following the engineering firm's instructions, thus this is derivative liability.
	- Condo Association could be maximizing return by suing real estate and engineering firms and then (whether they win or lose) suing Brisk.
	- Unless there is contractual agreement between Real Estate firm and Construction firm, they can't sue for damages.

Doctrine of Joint Tortfeasors
	- Some states hold that if two people do something wrong in the same incident even with no contractual arrangement between them, there can be liability between them ("me and you")
	- State statute creates 'joint liability', form of derivative liability

_Helzberg's Diamond Shops v. Valley West Des Moines Shopping Center_ (p. 930)
	- Store seeking preliminary injunction to prevent Lord and Taylor from opening
	- Mall responds that plaintiff fails to join an indispensible party (12(b)7--failure to join under 19).  Rule 19 tells you when and how you join the party; 12(b)7 is how you throw case out.
	- Rule 19(a)
		- Complete relief cannot be given without that person ... or
		- Person has such an interest and disposition may impair or impede person's ability...
	- Rule 19 is not just bringing in anybody that you think has something interesting--very high standard
	- If person cannot be joined because of personal or subject matter jurisdiction, then need to determine if person is indispensible--go to 19(b)
	- Is Lord's so indispensible that we have to dismiss action?
	- If not, court continues case in absence of party
	- First, 19(a) -- do we want this party, then 19(b) -- do we need this party?
_Helzberg's Diamond Shops v. Valley West Des Moines Shopping Center_ (p. 430)

Mall could have inconsistent obligations in two separate cases if Helzberg and Lord's both win.  Thus 19(a) is met.  Cannot join Lord's as subject matter jurisdiction would be lost, go to 19(b), is it an indispensable party?

19(b) gives criteria for determining if party if indispensable.

Need to weigh all factors to determine whether to dismiss suit or not.

Since 12(b)(7) was appealed on the basis of 28 U.S.C. 1292(a)(1) there was a preliminary injunction.  1291 - final decisions, 1292(a)(1) appeal on injunctions, 1292(b) certified by judge.

_Permissive Joinder Problems_

1.a. Yes, Rule 20(a) -- same transaction/occurrence, *and* similar questions of law or fact
b. Yes, Rule 20(a) -- same transaction, same question of law or fact (question of law)
c. Yes, rule 20(a), 2nd sentence, permissive joinder of defendants
d. Yes (probably), Rule 20(a), common issue of fact (if not common issue of law)
e. Yes, 20(a) -- "in the alternative", permissive defendant joinder, under Rule 11 you believe you will discover liable party with discover.
f. Could implead Hackney and Williams under 14a or 19 compulsory joinder, but probably could not make either motion as they are not derivatively liable nor are they indispensable.

2. Yes, under 18(a)--joinder of claims--may join as many claims as party has against opposing party.

3. Yes, *any* question of law or fact common to all defendants is okay, under 20(a) 2nd sentence. Under 18(a) you can add as many claims as you like against any opposing party.

4. Yes, 18(a) -- *may* join.

_Counterclaim Problems_

1. Yes, Rule 13(a) -- same transaction and occurrence, probably.

2. Yes, Rule 13(b) -- may state counterclaim *not* arising out of the transaction.  Need to have independent subject matter basis.

3. Yes, 13(b) again.

4. 13(h) -- joinder of additional parties.  Not 14(a), where Maze-Rothstein would be responsible to Woo in the case where Maze-Rothstein is found liable.  13(h) with respect to Rules 19 and 20 (compulsory or permissive).

	-* Defendant can only bring in additional parties under 14 or 19 unless there is a counterclaim against the plaintiff in which case parties can be brought in under 13h (and 19 or 20)

_Cross-claim Problems_

1. a. 13(g) like a rule (14) except it's a cross-claim--can bring another claim against another defendant (or plaintiff).  Can be made if other party is liable for all or part of the original claim.
	b. Not a counterclaim because both parties are defendants.

2. Yes, 13(g), still same transaction or occurrence.

3. No, 13(g), not the same transaction or occurrence.

4. Yes, 13(g) and then 18(a) as parties (defendants) then become opposing parties.

5. Yes, 13(a) compulsory counterclaim.

6. No, no diversity anymore.

_Pleaders and Impleaders_

1. If state has joint tortfeasors, Baumann can implead Enrich, since both would be responsibility.  Otherwise, not--'we both did something wrong'.

2. No, 'him not me', not impleader (not derivative liability).

3. Yes, because subcontractor is responsible to general contractor as a matter of substantive state law.  Abrams is responsible to Brodin as general contractor.

4. Yes, Rule 14 and 11. "Who is or may be liable." (Rule 14(a)).

	-& Will do next two cases tomorrow and finish questions
Next week--meet four times.
2 weeks--1 class.
3/4 -- regular
5 weeks -- no meeting 29th October.
Class on 2nd November 11:45am-1:15pm.

Joinder questions continued...

5. Separate transaction/occurrence and no derivative liability, cannot implead under 14(a).

6. Appropriate 14(a) implead under subcontractor relationship (derivative liability), then 18(a) is triggered and any claim against opposing party can be brought.

7. Not crossclaim or counterclaim, but allowed claim under rule 14(a) sentence 6.

8. Not opposing parties.

9. 1-Woo can counterclaim against Abrams with 13(a) or 13(b) (compulsory or permissive counterclaim).
	2-Abrams could counterclaim against Brodin, same rule.
	3-Woo could do a 14(a) sentence 6 claim against Brodin, then Brodin could do a counterclaim against Woo under 13.

10. Yes, rule 14(a) sentence 9 allows third-party defendant to bring another third-party defendant.

11. No, because Woo and Brodin are not opposing parties under 13(a) or (b).  In same transaction or occurrence, plaintiff could assert a claim against 3rd party defendant.

12. Yes, under 14(b). Gives plaintiff sames right as defendant in impleading.

13. No, rules do not give any mechanism for this.

_Intervention_: when someone outside of lawsuit wants to participate in some way.

Rule 24 motion -- party who has strong enough interest that they want to be part of lawsuit.

_National Resources Defense Council v. United States Nuclear Regulatory Commission_ (p. 940)
10th Cir. 1978

NRDC wants to be included in decision between agencies that are licensing uranium mines until they prepare Environmental Impact Statements.  Wants injunctive relief.

Several parties want to intervene:
	- United Nuclear
	- Kerr-McGee
	- Trade Association (American Mining Congress)

Who can intervene under Rule 14?
	- UN can intervene; neither party (NRDC or USNRC) objects
	- 24(a) compulsory intervention: 24(a)(1) can intervene if statute says so, 24(a)(2) applicant has interest in property/transaction that would be impaired and is not already adequately represented.
	- UN has license pending (tentatively approved at time of trial), would be stopped by injunction.
	- Agency's interest is in process of licensing, UN has interest in maintaining license and mining uranium as soon as possible.
	- Kerr-McGee's licenses will be up for review in near future; one of largest holders of uranium properties, significant interest.
	- UNC might settle on past licenses without regard to future interests which Kerr-McGee will have.
	- Appellate court rules 24(a) intervention as of right was met, so they don't have to rule on 24(b) permissive intervention.
	- If Kerr-McGee had sued NRC, unlikely NRDC could intervene (same problem as Allard).

What is meaning of 'interest', 'substantial interest'?

	- Empty boxes to be filled by judicial system & lawyers.  This is only thing that gives meaning to 24(a)(2).

_Martin v. Wilks_ (p. 948)
	- Black fire fighters (on behalf of class) and NAACP sue fire department (City and Personnel Board)
	- Come up with 2 consent decrees -- rule 23(e) requires notice of dismissal/compromise to all members of the class in such manner as court directs
	- Court holds 'fairness hearing' on consent decrees.  White fire fighters move to intervene under Rule 24.
	- Members of BFA sue City and Personnel Board -- same defendants, white plaintiffs
	- Want to get injunction to not enforce consent decrees
	- Original plantiffs move to intervene claiming interest in original decrees, allowed to intervene under rule 24(a).
	- Black fire fighters can assert issue and claim preclusion--consent decrees are enforceable as preclusions.  Claim issue is 'already litigated'. White fire fighters say they were not parties to earlier decision--cannot be bound by litigation to which they weren't part, regardless of whether they tried to intervene.
	- Court said there was no burden to intervene; plaintiff has burden of bringing all parties into case. Requires 'everyone' eventually to be brought in by plaintif, does not seem to be reasonable burden.
	- After case, congress passed statute prohibiting collateral challenge to a consent decree in a civil rights employment discrimination case if challenger had actual notice and opportunity to present objections or interests were adequately represented.

_Class Actions_ (p. 962)
	- Permits one or more parties to sue or be sued as representatives of people who are 'like them'
	- Allows unorganized or unincorporated group to be represented
	- Rule 23(a): Numerousity, commonality, typicality, adequacy of representation
	- 23(b) 1 or 2 usually for injunctive relief, 3 for monetary relief
	
_Communities for Equity v. Michigan High School Athletic Association_ (p. 969)
WD Mich 1999
	- Title IX claim on behalf of female athletes
	- Broad-based relief, future/prospective relief
	- When athletes graduated, case would become moot if it were not a class action--might never be decided with named plaintiffs.
	- Typicality problematic claim: example of Alston v. Virginia High School League; female athletes don't necessarily generally want things to change, thus plaintiffs were not typical of class.
	- Although there are many different claims in class, there is no schism like in Alston--thus they allow plaintiffs to be 'typical', varying claims could add up to pattern of discrimination.  Looks like _Mosley_ decision involving question of whether ten employees could be joined together.
	- Might be able to break down class into sub-classes if problem emerges.
	- p. 969 -- class defined
	- p. 973 -- Rule 23(b)(2) -- defendants claim class in unnecessary because injunctive relief would help everyone; but this is not requirement for 23(b)(2).
	- Split in circuits on 23(b)(2) issue--not done in 6th circuit.
Class actions continued...

_Heaven v. Trust Company Bank_ p. 977
11th Circuit 1997

23 -- all 4(a), one(b) -- Heaven b(3) -- gets money b(1)-(2) not money

Plaintiff brings regulatory action against defendant, defendant brings counterclaim.  Court has ruled that debt counterclaims are compulsory in Plant v. Blazer Financial.  13(b)3 -- common questions predominate over questions involving individuals.

Lower court rules that Class Action is not superior to individual actions as some of members of class would end up worse off as Class Action due to unpaid debts.  Also not manageable.

Rules enabling act allows Class Action certification to be appealed by Rule as it can effectively be a 'final order' in reality although formally it is not. 1291-1292, 2072, 23(f).

Contrast with _Ballard v. Equifax Check Servs._.

_Hansberry v. Lee_ p. 982
1940

	- Lee is trying to enforce racially restrictive covenant
	- Hansberry responds covenant is not in effect as it had not be signed by enough residents
	- Lee claims issue preclusion--already decided in prior class action
	- Class action was brought by white plaintiffs suing white defendants, defendants claim they might want to sell their home to black owners, plantiffs say there is a racially restrictive covenant, defendants agree.  Thus trial existed to set precedence on racial covenant.
	- Question is, when is someone bound by class action when they didn't know?  Is Mr. Hansberry bound by class from first action?
	- Normal rule is, yes, you are bound to class action.
	- But Hansberry was not adequately represented by class (rule 23(a)). 

_Quiz_

	- Question III
		- Need 8(a) short and plain statement, 10 - Caption ("Eakins v. Pittston"), Rule 11

_Practice Quiz Continued..._

III.A.

8(a), 10, 11

	(1) Elements -- claim pleading
	(2) Burden
	(3) Specificity -- 9
		- Heightened Pleading Requirement -- no heightened pleading post Leatherman
		- 18, 20 - 1983

III.B.

Representing Pittston

	- 8(b): deny or admit the answer, rule specificity of answer, consistent with 11(b)4
  - 8(c): affirmative defenses
	- 12: pre-answer motions
	- 13(a): compulsory counterclaims
	- 13(b): permissive counterclaims
	- 13(g): cross claims
	- 13(h): add parties
	- 14: derivative liability and other responsive claims
	- 18: permissive claim joinder
	- 19: compulsory party joinder (19(a) - party to be joined if feasible)
	- 20: permissive party joinder
	- 23: class actions
	- 24: intervention

On behalf of Pittston:
	- Case in chief is Eakins v. Pittston
	- Counterclaim of slander
		- If permissive, could be filed as a separate claim later, but not if compulsory
		- Need to establish whether slander arises out of same transaction or occurrence
		- Might be able to add another party if Eakins had slandered with someone else, but no evidence that this happened
	- Derivative liability
		- Could bring in State Environmental Agency
		- Buffalo Mining Company (if joint tortfeasors are liable to one another)
		- Insurance Company
		- Employees
	- Third party defendant can bring claims back against original plaintiff
	- Interventions:
		- Sister of Eakins might want to intervene as plaintiff

	- Individual is not bound if not party to action.
	- Individual does not have to take initiative it intervene.
	- Party's responsibility to join anyone they want bound.
	- If party brings case as class action, members of class are parties under rule 23, and are bound unless there is inadequate representation.
	- Rule 24 intervention: shareholders, other mining companies, other government agencies

Above--exploration of joinder rules--"1/4th of what you do in real life"--need to also look at subject matter jurisdiction, venue, personal jurisdiction (?).

_Relief_

Compensatory Damages

_United States v. Hatahley_ p. 315

	- Case between Navajo tribe and federal government
	- First, government sues Navajos for injunctive relief so Navajos don't rise livestock on federal land
	- Meanwhile, government sends animals to glue factory.  Would be tort if party were not government.
		- Frequently, claim against government is failure to give notice (no tort possible)
		-* Case where procedure and substance are the same--procedural due process is problem
	- Navajos are entitled to damages due to failure to give notice
	- Case concerns how to compute damages
	- Within tribal community, can exchange animals; court says damages must be determined by market value.
		- Would want to calculate cost of replacing animal and cost of training animal
		- Can also look at consequential loss--what is result of not having animal for given period of time
			- Prudent Person Mitigation--need to replace loss within reasonable time ('prudent person')
			- Not clear what constitutes prudent person.
	- 'Fundamental principle of damages is to restore person to position he would have been in had it not been for actions of other party.'

Punitive Damages

	- To punish other party, deter them from doing action again
	- Supreme Court has dealt extensively over last 25 years in split decisions (5-4):
		- Punitive Damages
		- Personal Jurisdiction
		- With respect to Civil Procedure
	- B-F: Procedural Due Process limits damages
	- Haslip: what are procedural protections when court is considering punitive damages?
		- Wealth of defendant excluded
		- Jury instructions carefully tailored to talk about purpose of punitive damages.
		- Trial court can reduce damages awarded.
		- Appellate court can reduce damages awarded.

_Honda v. Oberg_ P. 323
1994

	- Oregon state constitution amended to prohibit judicial review of punitive damages unless the court claimed there was absolutely no evidence to support the award
	- Limitations
		- Jury could not award higher punitive damages than complaint
		- Standard of proof (clear and convincing evidence)
		- Jury instructions consistent with Haslip as to purpose of punitive damages.
	- Supreme Court rules this amendment is inconsistent with 14th amendment to US constitution.
	- Two justices joining in dissent (Ginsburg and Rehnquist):
		- Federal government should stay out of state business
		- Nullification is consistent with procedural due process.

_BMW v. Gore_ P. 326
1996

	- Previously court has been concerned primarily with procedure, not dollar amount
	- Court rules $2M punitive award is excessive, violates due process.
	- Alabama courts are imposing punitive damages outside of Alabama.  Although you can bring nationwide class actions, different with punitive damages, cannot infringe on other state's interests.
	- Grossly Excessive (criteria for determining)
		- Reprehensibility
		- Ratio between compensatory damages and punitive damages
		- Relationship between punitive damages / civil penalty

Many close supreme court decisions--unstable area of law.

Specific Relief p. 332

	- Replace the thing lost, rather than money (looks like injunctive relief)
	- 7th amendment: if remedies were 'common law remedies', right to jury trial, otherwise judge will order relief

_Sigma Chemical Co. V. Harris_ p. 334
E.D. Mo. 1985

	- When judge is fact-finder, judge must make ruling as to findings of fact and conclusions of law
	- Burdens
		- With jury, judge decides whether party has met burden of production, then jury decides burden of persuasion
		- Without jury, judge decides that party has met burden of production *and* persuasion

Specific performance...

_Sigma Chemical Co. v. Harris_ (p. 334) continued...
605 F. Supp. 1253 (E.D. Mo. 1985)

	- Plaintiff seeks permanent injunction to stop defendant from working for competitor.
	- Criteria for deciding on injunction
		- Balance hardship of plaintiff and defendant
		- No adequate remedy at law ($)
		- (irreparable injury can fit into both categories)
	- Alternative would be money damages

_Declaratory Judgment_ (p. 338)

	- Confusing, because plaintiff and defendant are reversed--plaintiff is seeking ruling that what he will do is not illegal
	- Article III of US Constitution: in order to have federal court jurisdiction need to have case or controversy
	- If you can't find plaintiff and defendant, case is 'not ripe', cannot be tried.
	- Not always true in state courts--can sometimes get advisory opinions, Federal Courts can only give statements of law.

_Attorney's Fees_ (p. 340)

	- Contingency fee: attorney gets percentage of damages if they win
		- Risky
		- Only works for cases with large damages
		- Winning cases pay for losing cases
		- Potential conflict between lawyer and client
	- Flat rate: client pays their own attorney's fees.  "American Rule."
		- If you have no money or little money, you won't litigate.
		- Can bring difficult case, knowing you're not responsible for other side's attorney's fees, such as Brown v. Board of Education
		- Can't get the best representation without money
	- Fee Shifting (p. 351)
		- Common fund: when suit is brought representing a class, fees are shared by those who benefit.
		- Contract: leases for apartments often include stipulation that if landlord has to evict, tenant pays legal fees for eviction.
	- Statute (p. 353)
		- Could be awarded attorney's fees in suits that serve a public interest (California), for example
		- 42 USC 1988: fees awarded in Civil Rights suits.  e.g., 1983 (statute that allows you to sue under Civil Rights Statute, Title IX for example, if you are suing state actor or state action violating federal law) action triggers 1988.
		- Interpreted to mean only prevailing plaintiff gets fees
	- Rule 68 (p. 355)
		- If settlement is offered more than 10 days before trial begins (either plaintiff or defendant), and settlement is rejected, but final judgment is less than offer, party rejecting settlement must pay accrued post-offer costs.
		- Encourages settlement -- weighs in on side of judicial efficiency and defendant.
	- Rule 54(d) (p. 129)
		- Except where express provision is made in statute or rules, costs other than attorneys fees shall be allowed to prevailing party.

	- Case where award is less than proposed settlement
	- Plaintiff
										Pre-offer												Post-offer
	Attorney's Fees		American Rule (plaintiff pays)	Same
	Costs							Defendant Pays (54(d))					Plaintiff pays post-offer costs
	
	- Defendant
										Pre-offer												Post-offer
	Attorney's Fees		American Rule (defendant pays)	Same
	Costs							Defendant pays 									Plaintiff	(Rule 68)

	- Under 42 USC 1988, attorney's fees go to prevailing party if plaintiff. Then costs include attorney's fee.  Thus pre-offer, defendant pays attorney's fees and costs.  Post-offer defendant still pays own attorney's fees because 1988 only shifts fees from plaintiffs to defendants, not both ways, so under Rule 68 attorney's fees are only transferred one way.   

_Evans v. Jeff D._ (p. 358)
475 U.S. 717 (1986)

	- Defendant offers settlement without attorney's fees.
	- Lawyer is not supposed to allow his own interest, monetary or otherwise, to interfere with judgment.

_William Inglis & Sons Baking Co. v. ITT Continental Baking Co._ (p. 364)
526 F.2d 86 (9th Cir. 1976)
	- Criteria for preliminary injunction
		- Irreperable Injury
		- Likelihood of success on merits
		- Balancing of hardship
		- Public interest
	- Difference between Irreperable Injury and "No Adequate Remedy at Law"
		- Very similar but for 'point in time' when you're seeking injunction.
		- Irreperable Injury: "Money won't be able to remediate, but is preventable."
	- Preliminary injunctions are usually used to maintain status quo during lawsuit or to order temporary change to make sure the plaintiff isn't harmed during lawsuit.
	- _Charlie's Girls_ case--as potential injury increases, necessary probability of success goes down.

_Fuentes v. Shevin_ (p. 369)
407 U.S. 67 (1972)
	- Don't always need hearing; could just have opportunity for hearing.
	- 14th amendment:
		- State action
		- Individual
		- (life, liberty), property right
		- Not without due process of law
		- Not limited to citizens
	- Factors to weigh on both sides as to advantages and disadvantages of due process
	- Possessory interest is sufficient property right to trigger procedural due process.
	-* Due process has no fixed interpretation

_Mitchell v. W.T. Grant Co._ (p. 379)
416 U.S. 600 (1974)
	- Requirement for detailed affidavit, review by judge, immediate post-seizure hearing, procedure for damage and bonding; no pre-hearing; yet due process is sufficient according to supreme court.

_North Georgia Finishing Inc. v. Di-Chem, Inc._ (p. 379)
419 U.S. 601 (1975)
	- No detailed affidavit, clerk signed, immediate post-seizure hearing, not sufficient due process.

_Connecticut v. Doehr_ (p. 379)
501 U.S. 1 (1991)
	- No pre-seizure hearing, no bond
	- Judge and detailed affidavit, court ruled not sufficient due proces.

Specific relief continued...

_Temporary Restraining Order_

Rule 65(b) -- TRO may be granted without hearing.
	- Granted by judge, hearing after-the-fact (within 10 days), can be extended for 10 days
	- Typically, file TRO when you file complaint, then move for preliminary injunction (which does need to have prior notice under rules).
		- Need specific facts in affidavit
		- Attorney certifies in writing that they tried to give notice

_Discovery_

Informal and Formal Discovery
	- Informal
		- Government documents, conversations, etc., nothing to do with Federal Rules of Civil Procedure--must be done to be consistent with Rule 11.
	- Formal
		- How do you use discovery tools?
			- Mandatory disclosures (Rule 26(a))
			- Party's discovery (some ways to get information from non-party)
			- Show good cause to court--why court should allow you to get documents not allowed by rules
		- What changed in new discovery rules:
			- Seven hours in deposition.
			- Scope for mandatory disclosures.
			- Scope for discovery, in general.
		- Discovery Plan
			- Claims
				- Negligence (e.g.)
			- Next to each claim, list elements of claim
			- How to prove each element--what facts?
			- How to get/where is located each fact?
			- Evidentiary Questions/Problems relating to getting fact into evidence in trial
			- E.G.:
				- Negligence
				- Breach
				- Plans for dam, inspection reports, supervisor in building dam
				- Pittston--request to produce unless documents are part of Rule 26(a) mandatory disclosures that you get at beginning.  Supervisor--might need to do deposition if supervisor is not friendly.
		- What information is discoverable?
	
_Blank v. Sullivan & Cromwell_ (p. 487)
16 Fair Empl. Prac. Cas. (BNA) 87 (S.D.N.Y. 1976)
	- Appealing magistrate's decision to not allow certain discovery
	- Judge affirmed magistrate's ruling against discoverable
	- Plaintiff files for rehearing or reconsideration; device allowed if you can convince judge to change decision
	- Court allows discovery of promotion information as it might be relevant
	- Recent amendments to discovery rules narrows scope of discovery to information supporting 'claims or defenses' (not just 'subject matter').

_Steffan v. Cheney_ (p. 489)
920 F.2d 74 (D.C. Cir. 1990)
	- Steffan is refusing to answer under deposition question, to testify whether or not he had engaged in homosexual acts.
	- Party asking deposition question moved to compel answer, when defendant continued to refuse, plaintiff moved for sanctions under Rule 37(b)(2). Court gave sanction that case would be dismissed.
	- Navy believes information is relevant because it impacts his eligibility to be in Navy. But--substantive underlying law (administrative law doctrine) says you must deal with reason for decision; i.e., was Navy decision correct?  If Navy decision to dismiss based on admitting homosexuality, that basis for decision must be proved wrong, not other issues.

_Questions_ (p. 491 or p. 384 in supplement)
	- Mandatory disclosure: have to give information that disclosing party will use to support their claim.  Don't have to give 'damaging' information under Rule 26(a).
	- Until recently, there was no mandatory disclosure; everything was 'party-driven'.
	- Mandatory disclosure helps 'level playing field', as do limited scope.
	- Rule 16(b) Scheduling Conference
		- Has to be scheduled within 90 days of defendant appearing, and within 120 days of defendant being served
		- Disclosures must be made within 14 days 26(f) conference.
		- 26(f) is discovery conference as soon as practicable but at least 21 days before 16(b) scheduling conference
		- Mandatory Disclosures will have happened at least a week before scheduling conference
	- P. 389-390 supplement, Cora suing manufacturer:
		- 33(a), store is not a party, thus they don't have to answer.
		- Could depose store under Rule 30(a)(1)
		- Manufacturer, under rule 33(a)--too many interrogatories, cannot compel Manufacturer to respond, unless you go to Court.
		- 30(b)(6) -- different kind of deposition, where you don't know who to depose.
		- Once something is 'admitted', need no further evidence to prove, but cannot be used in another lawsuit.
_Discovery and Privacy_

_Stalnaker v. Kmart Corp._ p. 508
71 Fair Empl. Prac. Cas. (BNA) 705 (D. Kan. 1996)
	- Plaintiff alleges sexual harrassment, wants to depose employees concerning their sexual relationships
	- Magistration decisions
	- Defendant claims that information is irrelevant, embarrassing, and humiliating
	- Plaintiff wants to show pattern of behavior at KMart--wants to show that KMart has a 'hands-off' pattern with respect to sexual relationships in general, thus wants to compel testimony concerning voluntary relations.
	- Court decides that voluntary relations are irrelevant but other testimony is allowable.
Involuntary relations are embarrassing but relevant, so they can be discovered but not disclosed outside of lawsuit.
	- Need to determine:
		- Relevance
		- Privilege
		- Embarrassing/humiliating
	- Rule 412 concerns 'whether Plaintiff slept around', cannot be used against plaintiff.

_Abortion Problem_ P. 512

_Schlagenhauf v. Holder_ p. 516
379 U.S. 104 (1964)
	- Original plaintiff are injured passengers, suing driver (Schlagenhauf), company, owner of tractor, driver of tractor, owner of trailer.
	- Greyhound cross-claims against Contract Carriers and National Lead. Contract Carriers allege that bus driver was not capable of driving the bus.
	- Contract Carriers and National Lead petition for mental/physical exam of bus driver--Rule 35 Motion to submit Schlagenhauf to examination, gives nine possible doctors, Court sends driver to all nine.
	- Appeal by writ of mandamus, in which party sues judge for action taken by judge (Holder).  Court of appeals denied writ of mandamus, Supreme Court granted cert because it was an important question.
	- Schlagenhauf claims that application of Rule 35 to him would modify his substantive rights, violating the Rules Enabling Act §2072.
	- Precedent (Sibbach) states that Rule 35 does not violate §2072.  Schlagenhauf argues that plaintiff chose to sue, defendant had no choice, thus Sibbach should not apply to him, claiming plaintiff 'waives' right.
	- Rule 35 does not specify plaintiff or defendant, nor does it say parties need to be opposing parties.  Does *not* apply to non-parties.
	- Matter must be in controversy and must be good cause for Rule 35 motion.
	- Almost like heightened pleading requirement--to meet the test for being in controversy for purposes of a Rule 35 order.  would have needed to allege specific basis for different examinations.
	- Tension between 8(a) and 35--if you intend to put a matter in controversy in specific way in order to discover it, need to allege it somewhere.
	- Black argues that matter was in dispute, Douglas discusses privacy issue.
	- Court is essentially interpretting "in controversy" language in Rule 35 as "with specificity" although this may not be consistent with the _Leatherman_ decision--when rules want to state heightened pleading requirement, they do.
	-* Somehow, defendant needs to be on notice, with specificity, of possible discovery.

_Hickman v. Taylor_ p. 525
329 U.S. 495 (1947)
	- Plaintiffs file 39 interrogatories including 'attach documents', should be (today) request to produce for documents, not interrogatory.
	- Defendants object.  Court orders to compel.  Defendants refuse, court puts defendants in jail.
	- Trying to get written statements of witnesses, Fortenbaugh's notes of interviews with witnesses, and Fortenbaugh's oral recollection of interviews.
	-& Resume here.
	- Computer game:
		- http://lessons.cali.org/catalog.html
		- civil procedure
		- Buffalo Creek II: A Game of Discovery (Initial Disclosure Version).
		- Print out last page, write down scores and names, stick under Lucy's door
		- By next Tuesday
		- Password learnthelaw

_Hickman v. Taylor_ (p. 525) cont'd...
329 U.S. 495 (1947)
	- Wants to know other lawyer's arguments, is attempting to discover notes of interviews with witnesses, written statements of witnesses (actually drafted by lawyer), and lawyer's oral recollection of interviews.
	- Discovery denied because plaintiff can talk to witnesses himself
	- "Work product" -- judicially created exception to the discovery rule
	- When could work product be discoverable:
		- When this is the only way it can be obtained
		- Must be 'essential, necessary' information
		- Written statements of witnesses
			- No attempt made to explain why these documents should be forced to produce--thus work product rule is not overcome
		- As for oral statements to lawyer in form of written memo or recollections, no showing of necessity can be made.  What is contained in these documents is 'lawyer's mental process', a lawyer is not allowed to testify in case that they are litigating.
	-* Protects lawyering function and ability to do his or her job.
	- Is justice better served by sharing arguments?
	- Now established in 26(b)3 -- codifies Hickman to some degree
		- 'Documents and tangible things' otherwise discoverable under (b)(1) (relevant, not privileged) and prepared in anticipation of litigation or for trail, only showing party has substantial need of materials in preparation of case and is unable to obtain equivalent by other means without undue hardship.
		- Under 26(b)3 
			- Written statements of witnesses, same standard (show necessity and no ability to get w/o hardship)
			- Written notation by lawyer of interviews, no way under Hickman
				- Under 26(b)3, if lawyer's impressions can be excised, may be discoverable
			- Oral recollection of lawyers -- no by Hickman although 26(b)3 does not specify
				- Could have gone either way; since 26(b)3 is silent on intangible as work product, could be interpretted to mean it is not, or could be interpretted to mean that precedent (Hickman) rules--latter is the case

_Buffalo Creek Problem_ (from supplement)

_Problem_ p. 539

26(A)(1)(a) may or may not apply to expert who will not be called at trial--depends on jurisdiction.

_Thompson v. The Haskell Co._ (p. 539)
65 F. Empl. Prac. Cas. (BNA) 1088 (M.D. Fla. 1994)
	- Plaintiff files for protective order to render psychologist report undiscoverable
	- Expert witness who will not testify can only be deposed under 35(b?) or exceptional circumstances
	- Court decides no other way for defendant to get information, thus it is discoverable

_Chiquita International Ltd. v. M/V Bolero Reefer_ (p. 541)
1994 U.S. Dist. Lexis 5820 (S.D.N.Y. 1994)
	- Chiquita's expert regarding loading bananas onto boat
	- Is person expert?
		- Court decides yes, based on technical background as marine surveyor.
	- Vis-a-vis deposition of expert, no discovery, since Chiquita could have done same inspection
	- Expert's report is discoverable in terms of facts but not opinions

In _Thompson_, defendant could not have gotten a psychiatric examination of plaintiff in this time period, but in _Chiquita_ perhaps they could have gotten technical information.

Special Treatment of Experts

_Rule 37 - Sanctions_

	- Nothing will happen unless the party seeking discovery acts--need to file motion to compel discovery
	- If other side does not comply, then file motion for sanctions

_Chudasama v. Mazda Motor Corp._ (p. 549)
123 F.3d 1353 (11th Cir. 1997)

	- Only defendant motion that was permitted was to certify question on discovery sanctions
	- Appeal is interlocutory because damages have not yet been decided
	- 37(b)(2)(c) sanctions, in this case, a default judgment
	- 37(a) motion -- order to compel
	- Question is not whether sanction was right sanction but whether order to compel was justified at all.
	- District court did not rule on motion to defendant's motion to dismiss fraud charge, directly connected to discovery
	- Failed to rule on motions objecting to interrogatories
	- 26(g) like rule 11 for discovery -- entering on default judgment was inappropriate sanction
	- Rules that allow fees in some situation
		- Rule 11: complaint/answer -- reasonable inquiry under circumstance
		- Rule 26(c): Refers to 37(a)(4), provides for fees when you are getting protective order
		- Rule 26(g)(3): fees for improper discovery (like rule 11 for discovery)
		- Rule 37(a)(4): fees on motion to compel
		- Rule 37(b)(2): fees on time spent filing for sanction
		- Rule 37(c)(1): fees and costs to seek judicial remedy for getting mandatory disclosures
		- Rule 37(c)(2): fees and costs for having to prove something that you asked other party to admit but they didn't admit
		- Rule 37(d): fees for failure to answer interrogatories, respond to request to produce, or to attend your own deposition
		- Rule 37(g): failure to participate in discovery plan
	-* Important to push fees, 'not be pushovers', show that you are moving the case

	-& Buffalo Creek computer game--go ahead!

_Peralta v. Heights Medical Center_ (p. 568)
485 U.S. 80 (1988)

	- Service must happen within 90 days, thus service was improper (untimely)
	- Question as to whether service was ever given at all.  "Sewer service" -- when sheriff never serves at all, doesn't want to deliver to poor area.
	- Court enters default judgment for plaintiff (under Rule 55).
	- Defendant's property is attached, then sold, damages awarded to plaintiff. No notice of sale to defendant.
	- Defendant files motion to vacate default judgment, plaintiff moves for summary judgment (Rule 56).
	- Lower court grants Rule 56 summary judgment. "In order to vacate must have meritorious defense."
	- Supreme court overturns ruling, saying due process should occur even absent meritorious defense.
	- 14th amendment:
		- State actor (=sheriff giving service)
		- Deprivation of property right (=land)
		- Without due process (=box to be filled)
	- Can due process be filled by giving hearing and vacating if there is meritorious defense or proof that the defendant could have gained by having process?
	- Notice and opportunity for hearing are central to due process

_Voluntary Dismissal_ (p. 573)

	- Once case is voluntarily dismissed under 41(a)(1)(i), it cannot be brought again.
	- Manshack - state law limits/expands remedy
		- 41(a)(2) - need court's permission for dismissal since answer has already been given
		- Court allows dismissal without prejudice (affirmed)
	- Grover
		- Federal Court action certified question to Ohio State Court
		- Ohio Court rules plaintiff does not have cause of action
		- Plaintiff moves for dismissal under 41(a)(2)
		- District court grants, appeals court reverses (can't dismiss)

_Summary Judgment_ (p. 627)

	- Difference between 12(b)(6) and summary judgment 56(c): in 12(b)(6) just look at complaint, in 56(c) look at discovery/facts.
	- No genuine issue of material fact, moving party is entitled to judgment as matter of law
	- Celotex case (p. 630) revolutionized summary judgment motions
	- In certain cases, look to whether plaintiff has sufficient evidence to prove case, unlike previously when issue is just lack of disagreement of material fact.
	- Prince decision (from supplement) is no longer good law: "this court is obliged to exercise care in grating motions for summary judgment..."  "no room for controversy, party cannot prevail under any circumstances", "burden is upon party moving for summary judgment to demonstrate that there is no issue of material fact and any matter in controversy is held against moving party..."  Looked at allegations in complaint, moving party had to show there was no way to prove matters in complaint.
	- Celotex changes Rule 65 dramatically: "plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery...against a party who fails to make a showing sufficient to establish the existence of an element to that party's case..."
	- As part of interrogatory, Celotex alleges plaintiff has no witnesses to prove deceased has been exposed to Celotex asbestos.
	- Court changes test and sends it back to lower court to apply new test to evidence plaintiff has submitted.
	- Moving party only has to inform court of lack of plaintiff's evidence, does not have to negate opposing party's claim, does not have to produce evidence showing opposing party cannot meet claim, only have to show lack of evidence.
	- Burden on non-moving party: need to show sufficient evidence on each element of claim. Moving party needs to demonstrate there is not sufficient evidence on any one element of claim.

Burden in _Celotex_ is on non-moving party to prove sufficient evidence for each element of prima facie case.

Party with burden (i.e., plaintiff) can move for summary judgment in factually-based case, very rare, usually motion for directed verdict.  Rule 56 does not limit which party can file for summary judgment.

_Visser v. Packer Engineering Associates_ (p. 636)
924 F.2d 655 (7th Cir. 1991)
	- Packer claims he did not fire Visser on age basis.
	- Visser needs to respond to Packer's claim because he has burden to offer evidence for each element of case.  Pre-_Celotex_, Visser would probably not have had to respond, could simply show that there was a genuine issue of material fact.
	- Plaintiff's supporting affidavits did not support plaintiff's claim on personal experiences.  Inferences are permissible if they are grounded on personal experiences.
	- In order to win case, might use:
		- Company Records
			- Consultants
			- Patterns
			- Benefits Records
		- Possible: experts, own affidavit, witnesses
Discussion of Judge v. Jury

Legal and policy arguments should *not* be separated (according to L.W.).

Right to Jury Trial
	- Seventh amendment: 'suits at common law'.
	- P. 699 problems:
		- 1.a. Jury Trial
			b. Judge
			c. Judge
			d. Judge
	- P. 332 (quirks in courts)
		- 3.b. seeks to recover diamong ring = jury trial (replevin)
		- 4.b. seeks ejectment = jury (ejectment)
	- In addition to seventh amendment right to jury trial
		- In criminal context, can only nullify law in order to acquit, not to convict
		- In civil case, judge monitors whether case is appropriate for jury even when it is within seventh amendment rights.
			- 12(b)(6): case can be dismissed for failure to state a claim upon which relief can be granted
			- 12(c): complaint and answer (as defined in 7(a)) judgment
			- 56: summary judgment. "No material issue of fact and in which party is entitled to judgment as matter of law."  If party with burden has not put forth sufficient evidence to justify each element of claim, then moving party wins summary judgment.
			- 50, 52: Judgment as matter of law--50 is in jury case, 52 where judge is finder of fact
			- 50: Directed verdict--can happen at end of plaintiff's or defendant's case, but before jury
				- At end of plaintiff's case, defendant can move for directed verdict based on claim that plaintiff has not met the burden of proof.
				- At end of defendant's case, defendant and plaintiff are likely to move for directed verdict.  Defendant could claim that, based on defendant's evidence, burden is back on the plaintiff who hasn't proven case in light of defendant's evidence.  Plaintiff can claim that its evidence has been so overwhelming and defendant's too little, so no reasonable jury could find against plaintiff.
			- After Jury Verdict, losing party can make Rule 59 motion, judgment notwithstanding the verdict.

_Reid v. San Pedro, Los Angeles & Salt Lake Railroad_ (p. 713)
39 Utah 617, 118 P. 1009 (1911)
	- Court holds that plaintiff did not meet burden of production; trial court should have granted defendant's motion for directed verdict.
	- If equally possible that cow came through broken fence vs. open gate, why doesn't jury decide?
		- Plaintiff has burden of production.
		- If you have equal inferences, party with burden loses as a question of law.
	- Post-_Celotex_, directed verdict and summary judgment have same burden.

Look to see if plaintiff has met burden of production (standard is preponderance of the evidence).

Circumstantial/statistical evidence is permitted--sometimes.

At what point do you move out of "probability" into "reasonable inference"?

_Pennsylvania Railroad v. Chamberlain_ (p. 724)
288 U.S. 333 (1933)
	- Breakman killed, decedent's estate sues for wrongful death.
	- Bainbridge heard loud crash, doesn't look up right away, but when he does look up, breakman is missing and trains are moving together.
	- Defendant has affidavits that they saw breakman fall off first
	- Trial court directs verdict for defendant.
	- 3 railroad employees claim no crash
		- With jury trial, could undermine employees credibility
		- Inconstistencies between stories
		- Eyesight
	- Directed Verdict
		- Plaintiff did not meet burden of production
		- or: court weighed evidence. (wrong rule, but maybe what court applied)
			- What if defendant had not put in evidence about employees?
			- Probably would have *not* given directed verdict

_Railroad Co. v. Stout_ (p. 731)
	- Child injured in railroad turnstyle, no dispute of facts, directed verdict denied, case goes to jury, rules for plaintiff.
	- Negligence is 'question of fact' for jury to decide

Difference between summary judgment, directed verdict, judgment notwithstanding the verdict = time in trial.

7th amendment says no court shall overrule jury.  Judgment notwithstanding the verdict works by principle that error of law was made in denying motion for directed verdict.  Cannot get jnov unless you have filed for directed verdict.

_Lind v. Schenley Industries_ (p. 736)
	- Motion for a new trial
	- 59(d): judge can rule on his or her own motion to order a new trial
	- What standard should Trial Court apply?
		- Same basis as directed verdict.
		- Miscarriage of justice--seriously erroneous decision.
		- 13th juror. (Court does not accept) -- "I would have voted the other way had I been a juror.)
	- How should trial court apply standard?
	- Appellate court review?

_Lind v. Schenley Industries_ (p. 736)
278 F.2d 79 (3d Cir. 1960)
	- Possible standards
		- Directed Verdict
		- Miscarriage of Justice
		- 13th Juror
	- Court uses 'miscarriage of justice', seriously erroneous result
	- Directed verdict: plaintiff fails to meet burden of production--need to put in sufficient evidence on each element of claim
	- Summary judgment: decision based on affidavits, depositions, etc., discovery documents (vs. directed verdict where you examine evidence introduced at trial).  Certain documents can be ignored but all can be considered.
	- 'Miscarriage of Justice': met burden of production, but not burden of persuasion
	- Judgment notwithstanding the verdict = same test as directed verdict, did not meet burden of production.
	- Miscarraige of justice: met burden of production, but 'just barely'.  Judge feels so bad about jury's decision that he wants another jury to examine the question -- i.e., retry the trial.
	- In Lind, Judge used 'thirteenth juror' standard, just substituted his or her own opinion for the jury's.
	- Standard for ruling on motion for new trial is different: reasonable jury *could* rule the way they do, but it's so unlikely, judge wants to retry case with new jury.
_Quiz Questions_

	- How to get Buffalo Mining Company Business Records
		- Rule 26(a)(1)(B) -- mandatory disclosures
			- Has to be something disclosing party will use to maintain its claims or defenses to be mandatory
			- If Pittston can make plausible claim that these documents will not be used, Pittston will not even mention them.
		- Could file Rule 34 motion to produce documents
		- Pittston may respond with 26(b) -- (1) information is not relevant, (2)(iii) burden/expense outweighs benefit, or 34(a) possession, custody, or control of *party*, Pittston could claim no control over Buffalo Mining Company.  But if Pittston claims separate entities, could create jurisdictional problems for Gerald Stern.
		- 34(b) documents have not been described with reasonable particularity
		- If Pittston does not have access to documents, could do Rule 45 Subpoena.
		- Buffalo Mining: 45(c)(3)(a)(iv) subpoena is undue burden.
		- Motion to compel under Rule 37
	- Routine Business Records of Pittston
		- Same situation except subpoena issue
	- Information from Pittston Executives Concerning failure of dam
		- Deposition or Interrogatories
		- Routine information -- interrogatories, 'smoking gun' questions -- deposition
	- Various documents filed with government
		- FOIA
	- Older personnel records of Buffalo Mining Company that you have reason to believe will soon be destroyed
		- Rule 45 Subpoena, Rule 65 Temporary Restraining Order (preliminary injunction)
		- Pittston may respond personnel records are irrelevant
	- Party fails to attend their own deposition
		- Rule 37(d)
			- Martha Tomley: had car trouble, couldn't make long drive to Charleston.  Justified because she had car trouble, unjust to impose fees because she tried to make it.
			- David: doesn't want to leave mother.  Would be unjust to dismiss David. To justify not imposing fees, could claim Pittston would have stayed the extra day anyway to depose Martha, whose absence was substantially justified.

	- Negligence damages and punitive damages for willful & wanton conduct.  Motion for summary judgment.
		- Elements of claims
			- Negligence: Duty, breach, causation, injury.
			- Wilful and waton conduct: notice and knowledge, reckless disregard, causation, injury.
		- Test to avoid summary judgment from Celotex:
			- If party with burden fails to put in sufficient evidence on any one element of the claim, cannot prevail in summary judgment.  Once moving party shows that there is insufficient evidence, non-moving party has burden to show that there is sufficient evidence.

_Claim Preclusion_
	- Two cases:
		- State Court replevin Frier v. City of Vandalia
		- Federal Court due process, same parties
	- Trial court grants 12(b)(6) motion (should have been summary judgment) on basis that there was no procedural due process claim.
	- Appellate court rests on claim preclusion entirely.  Appellate court can affirm on any basis.
	- §1738: state court decisions have same full faith and credit in every court as they have by law or usage in the courts of that state
	- State Claim Preclusion Tests
		- Same transaction test
		- Same evidence test
	- Transaction test applied in federal courts and most claim pleading states
	- Evidence test applied in most code pleading states

	- FRCP do not require compulsory joinder of claims within a suit, but case law precludes the litigation of a second claim if you chose not to bring it in the first case

_Martino v. McDonald's System, Inc._ (p. 811)
598 F. 2d 1079 (7th Cir), Cert. Denied, 444 U.S. 966 (1979)
	- Case 1: McDonald's Systems and FRIC v. Martino and brothers
	- Consent decree--prior to answer being filed
	- Case 2: Martino v. McDonald's and FRIC
	- Antitrust action
	- Rule 13a
_Martino_
	- No answer, settled.
	- Generally rule is claim preclusion applies for counterclaims etc..
	- Why might court not apply claim preclusion in this case?
		- If parties settle before answer, no claim preclusion.
	- "Exception to exception:" Look to relief granted in first case---if it is inconsistent or undoes relief from first case, claim preclusion does apply, even if answer was not filed.

Claim preclusion: could be raised in affirmative defense, then defendant would move for summary judgment (since papers from first case would need to be considered in granting the motion.)

_Searle Brothers_ (p. 818)
	- Separate individuals = separate claims
	- Martin v. Wilkes: not bound by judgment if not part of case
	- Exception: can be bound by class action under rule 23 (Hansberry v. Lee), if class representative adequately represented you
	- If person is in privity with party from case, person can be bound to that decision.
	- In first case, 100% of property is given to wife.
	- Husband and sons sue wife/mother, 'we want our half back'.
	- Majority rules that they are not in privity, because they have independent interest in property, separate from mother's interest.  Uses legal definition/case law to define privity.
	- Dissent: because sons were 'active'--testified in last litigation.  Father was in control of property, and therefore could speak for children's interest.
	- Sons had notice in first case.  Were allied with father.  Therefore, sons had some control of earlier litigation.
	- If case had been one where they might have intervened they might have been found to be in privity.
	- Generally, failure to intervene does not bid a non-party.  But because sons could not have intervened, they were less likely to be found in prviity (Utah law of civil procedure).
	- Privity
		- Legal relationship (agency, partnership) -- matter of law
		- Agreement of parties
		- Virtual representation (focus of dissent)

_Richards v. Jefferson County_ (p. 823)
	- Different parties in second case than in first.  Weren't in privity because: plaintiffs in second case had no notice in first case. (Martin v. Wilkes).

_Judgment on the Merits_
	- Presumably, has met burden of persuasion.
	- Failure to prosecute: judgment on merits because you have not met burden of persuasion.
	- 12(b)2 lack of jurisdiction: not judgment on merits.

_Gargelo (sp?)_
	- Merill Lynch sues Gargelo in state court for collection of contract
	- Gargelo sues Merill Lynch in Federal Court for violating Federal Securities Law.
	- In first case, because Merill Lynch (or Gargelo?) fails to comply with order to compel in discovery, case was dismissed.  Does the act as claim preclusion as affirmative defense in the second case?
	- §1738: State Court had no subject matter jurisdiction over securities claim, thus no claim preclusion.
	- Federal Court in second case has to act as state court.
	- Ohio: decision by court without subject matter jurisdiction is not preclusive (restatement second of judgments).

_Summary of Claim Preclusion_
	- Claim preclusion applies to claims which were brought or could have been brought.  If claim could not have been brought, it is not precluded.
	- §1738 -- use state law to determine whether there is a preclusive effect.
	- Claim preclusion only applies to parties to the first action or in privity.
	- Must have judgment on merits (not same as weighing evidence)
	- Applies to compulsory counterclaims and defenses except if you have not answered 13(a)--compulsory counterclaims are not precluded from second suit where there has been no response.  Common law says you are not barred from bringing second suit on defenses where you have not answered, except if second case would nullify first case.

_Issue Preclusion_
	- Issue must have already been litigated and determination of that issue must be essential to judgment.
	- P. 403 in supplement:
		- Faigin--sanctions under Rule 11 motion not same as issue preclusion.
	- Xantech malicious prosecution, no claim preclusion.

_Parks Case_
	- Two cases: Bertha + Jessie (consortium) v. Illinois Railroad.  Jessie not suing for own injury, but for having Bertha around.  Suing for his loss of her wifely services.
	- Bertha wins, Jessie loses.  Illinois wins against Jessie.
	- Jessie then sues for own injuries v. Illinois Railroad, for his own injuries.
	- Consortium is not same claim as suing for own injuries--using a more restrictive 'same evidence' test than that used in Frier
	- Always look to claim preclusion before issue preclusion.
	- What issue is Illinois Railroad trying to stop Jessie from relitigating?
		- Contributory negligence (claim that Jessie lost in first case because he was found to be contributorily negligent)
		- Court does not know if jury based verdict in earlier case based on contributory negligence; maybe they found based on no damages for consortium.
	- Could request that judge get a 'specific verdict'--judge will ask jury to ask a series of questions in order to determine issue preclusion.

_Issue Preclusion_

Issue must be essential to judgment, even if it's found to be actually litigated and determined.

Jury returns, decides that *both* issues are litigated and determined.

Restatement I: both issue is precluded.
Restatement II: neither issue is precluded.

	- What was actual consideration by jury?  Was it really combination of both?
	- On appeal, party needs to win on both grounds.  Might not appeal if they knew one of the grounds would not be appealed, thus issues might both 'sit there'.
	- In order to preclude a party from relitigating an issue, need to be clear that that issue was correctly decided in the first place.  If jury or judge reached verdict on two different issues, might be disincentive to appeal on one or the other (since they still wouldn't win, if one of them were correct).

_Problems_ p. 842
	- District court dismisses for lack of subject matter jurisdiction.  This is not issue preclusion in state court, since issue is not relevant.
	- Dismissed on lack of personal jurisdiction.  Issue preclusion in state court.
	- Dismissed on both grounds
		- Under 1st restatement, usually both would be precluded, but one is not relevant.
		- Under 2nd restatement, neither would be precluded.
	- After district court had dismissed on both grounds, plaintiff appeals.  Court of appeals affirms subject matter jurisdiction without reaching question of personal jurisdiction.
		- No effect on case 2. No preclusion because subject matter jurisdiction has no relevance.
	- Appellate court affirms both grounds.  Both issues precluded (returns to principle of restatement I).

_Mutuality of Preclusion_
	- Bertha v. RR, RR found negligent
		- Jessie v. RR is negligence precluded?
	- Bertha v. RR, RR not negligent
		- Jessie v. RR -- is non-negligence precluded?
	- Plaintiff v. Defendant, plaintiff loses, no valid patent
		- Plaintiff v. New Defendant, can new defendant preclude whether there is a valid patent?
	
	- Blonder-Tongue Laboratories v. University of Illinois Foundation
		- Defensive preclusion.  Plaintiff lost in first case, defendant is trying to use issue from case one.
	- Second case: Jessie has not had his day in court yet--unless Bertha and Jessie are in privity.  Cannot use Defensive preclusion to preclude new plaintiff.

_Parklane Hosiery Co. V. Shore_
	- Second Case: SEC v. Parklane
		- Proxy statement was fraudulent.
	- First Case: Stockholders v. Parklane
		- Stockholders want to preclude issue of whether proxy statement was fraudulent.
		- Different plaintiffs, trying to preclude same defendant.
		- Offensive preclusion.
		- Court is reluctant from permitting offensive preclusion.
			- Defendant might not have fought issue earlier if damages were low, etc..
			- Defendant is in court involuntarily.
		- _Blonder-Tongue_: do not need to have mutuality of parties--same plaintiffs and same defendants. Defensive preclusion is allowed without mutuality.
		- Claim preclusion *requires* mutuality of parties.
		- Court finds offensive preclusion permissible in this case.  Stockholders could not have been part of SEC action (agency regulatory action).  Even if stockholders could have joined, looked at whether defendant adequately defended SEC action.  "No unfairness to partioners" (p. 850). Extending Blonder-Tongue reasoning to offensive preclusion.
	- But--no right to a jury trial.  Couldn't this be procedural advantage?  (=unfairness).  Sometimes things trump seventh amendment.

_State Farm Fire & Century Home Components_ (p. 855)
	- Five Cases
		- 1st: jury verdict for defendant. Appeal: error--plaintiff failed to compel defendant to produce a statement that would impeach defense, thus remand for new trial.
		- 2nd: Jury verdict for defendant, no appeal granted.
		- 3rd: Jury verdict for plaintiff, affirmed on appeal.
		- 4th: Retrial of case 1.  Plaintiff wins.  Appealed, affirmed.
		- 5th: Negligence and causation--issue preclusion based on case 3 and 4. Defendant says no issue preclusion because of case 2.
	- No issue preclusion
		- Inconsistency of judgment. Would be unfair to use issue preclusion with different jury verdicts.
		- Cannot preclude someone who is not party to action before--Century Homes could not use 2nd case for issue preclusion.

Balancing issue is much more present in offensive preclusion.

For Issue preclusion:
	- Identity of issue
	- Adjudicated and determined in prior case
	- Essential to judgment
	- Full and fair opportunity to litigate (generally assumed defensive preclusion, but not offensive preclusion).
	- Do not have to have full mutuality of parties.

Criteria on p. 819
	(mixture of issue preclusion and claim preclusion).

Questions on Hand-out
1.
	a. Different transaction or occurrence--not claim preclusion at all.
	b. Might be probative evidence, but no preclusion.
2.
	a. Still not same transaction.  Probative, but not preclusive.  Could not relitigate specicication in contract--cannot restate that he delivered AB coal but that was okay with concert.
	b. No claim preclusion, different transaction.  No issue preclusion either, because issue was not adjudicated and determined.
	c. Probably yes, issue preclusion, unless he can use as basis of equity or fairness that he didn't have opportunity to fully litigate in first case, or expert testimony is new evidence, could not have put it in in first case, because it would be unfair.
	d. Whole new issue--no preclusion.
3.
	a. Williams would want to invoke collateral estoppel (issue preclusion).
	b. No--no mutuality.
	c. No, can't use preclusion against new party.
4. a. Non-mutual, Baumann, defensive.
	b. Baumann could use defensive preclusion to keep Williams from relitigating ownership of land.
5. Offensive, non-mutual, issue preclusion.  Could be used under Parkman Hosiery, 'fairness test'.
_Personal Jurisdiction_

Two issues: power and notice.

_Pennoyer v. Neff_ (p. 77)
95 U.S. 714 (1877)
	- First lawsuit is between Mitchell and Neff for unpaid legal fees
		- Neff is non-resident
		- Constructive notice -- publication
		- Neff does not appear, default judgment against Neff.
		- Neff subsequently acquires land, sells land to Pennoyer through "Sheriff's deed".
		- Neff then sues Pennoyer to recover land (ejectment).
		- Pennoyer: cannot eject me, I have sheriff's deed.
		- Neff: Sheriff's deed is invalid.
		- Under Oregon Code, how do you get personal jurisdiction?
			- Over person -- in personam
				- Appear in court
				- Be found in state
				- Be resident of state
			- Over property -- in rem
				- Have property in state
				- Property must be attached when jurisdiction is attached--when case is filed
			- Mitchell did not attach property, Neff did not own property, when lawsuit was filed
		- No jurisdiction by Oregon statute: 'constructive' notice only possible with in personam jurisdiction criteria above.
		- 14th amendment: due process of law--supports state jurisdiction rules.
		- Fight over personal jurisdiction is always going to be over defendant--plaintiff can chose jurisdiction and 'appear'.
	- Federal courts (usually) applies state law regarding personal jurisdiction.
	- If Federal Court is trying to decide whether jurisdiction was attached in first case, needs to use full faith of state law.
	- Erie Doctrine: if first case was never filed, which laws apply?

_Problems_ (p. 86)
	- 7
		- a. Case dismissed--A did not attach property.
		- b. same result--no attachment (no jurisdiction).
		- c. personal jurisdiction--B was found in Minnesota.
		- d. same result.
		- e. yes, attachment->gives in rem power.
		- f. no, notice but no power.
		- g. yes, can get jurisdiction to determine status
		- h. no, not part of exception (beyond status)

_International Shoe Co. v. Washington_ (p. 95)
326 U.S. 310 (1945)
	- Claims of Company
		- We are not there --> not taxable
		- We are not there --> no personal jurisdiction
	- In Personam jurisdiction--if they wanted in rem, they would have had to attach some property (shoes?)
	- Need to establish 'presence' -- minimum contacts/'traditional notions of fair play and substantial justice'
	- Relationship of contacts to lawsuit -> 'traditional notions of fair play and substantial justice'
	- General jurisdiction vs. specific jurisdiction
		- General: can bring any claim
		- Specific: jurisdiction is tied to claim
	- Contacts have been continuous and systematic but also give rise to liabilities sued on-->specific jurisdiction.
	- Casual/single/isolated --> no general jurisdiction.
	- Certain single acts because of nature, quality, circumstances of commission may be sufficient for specific jurisdiction.
	- Some activity is enough (substantial/pervasive) to give general jurisdiction.
	- Concept of 'appear or found' (from Pennoyer) may have become 'minimum contact' test.

_Pennoyer v. Neff_ gives us 14th amendment concept of power and notice, state sovereignty.

_International Shoe_ -- not so much 'is the person there' but 'is it fair?'
	- Minimum Contacts consistent with traditional notions of fair play and substantial justice
	- Subtantial or pervasive - general jurisdiction
	- Continuous and systematic - specific jurisdiction
	- Single act - specific jurisdiction
	- Casual/Single/Isolated - No general jurisdiction
	- No contacts no jurisdiction

Court has to have power over all defendants (can't just be over one).

*Presence* in _Pennoyer_ becomes *minimum contacts* in _International Shoe_.

In rem v. quasi in rem:
	- In rem frequently talked about as if it includes both but technically they are separate
	- In rem: attaching property for claim relating to property
	- Quasi in rem: attaching property for claim not relating to property

_Shaffer v. Heitner_ (p. 104)
433 U.S. 186 (1977)
	- Greyhound's principle place of business is Arizona, incorporated in Delaware
	- Shareholders action against Board of Directors concerning actions taken into Oregon (alleged anti-trust violations)
	- Plaintiffs sequestered stock (or alleged stock) in Delaware
	- Issues
		- Contact Issue (personal jurisdiction)
		- Whether Delaware statute was constitutional (due process)
	- Defendants argue that due process rights were violated--property seized with notice and opportunity for hearing
	- Lower Court (Delaware Supreme Court) finds in favor of plaintiffs on due process.
	- Supreme Court does not reach the _Fuentes_ due process rights because they find no personal jurisdiction. Doesn't matter if there was notice & opportunity of hearing.
	- Defendants believed _Pennoyer_ standard might still be valid--in rem jurisdiction gives personal jurisdiction.  Shaffer overturns _Pennoyer_ reading, post-_International Shoe_.
	- Directors are being sued, not corporation; thus no general jurisdiction in Delaware.
	- Abolishes In rem general jurisdiction in analysis of _International Shoe_.  Property becomes 'a contact' under _International Shoe_ standard...  essentially abolishes in rem jurisdiction, all same analysis.
	- Brennan--consenting and dissenting: Agrees with _International Shoe_ test, but feels lower court should have made decision under that test.  ...three interrelated public policies (p. 112).

_McGee v. International Life Insurance Co._ (p. 116)
355 U.S. 220 (1957)
	- Texas successor to California Life Insurance Company
	- Texas company sent reauthorization to Policy Owner in California.  He reauthorizes and continues to make patients.
	- Beneficiary of policy sues corporation in California.
	- Company was doing business with policyholder in California
		- Mail to and from California (contracts, premiums)
		- Coverage is for someone in California.
	
_Hanson v. Denckla_ (p. 117)
357 U.S. 235 (1958)
	- Will under which one daughter gets everything
	- Just because you are covering someone in Florida and mail goes back and forth doesn't mean personal jurisdiction.
_McGee_ review -- insurance, California, yes personal jurisdiction.
_Hanson_ -- trust administration, trust in Delaware, no jurisdiction, insufficient contacts.

_McGee_ they sought out business in California, reauthorized insurance; _Hanson_ trustee continued to do business in Florida...
	- Where did original solicitation occur?
	- Trust owner may have wanted to keep trust in Delaware, because they did not move it when they move

_World-Wide Volkswagen Corp. v. Woodson_ (p. 119)
444 U.S. 286 (1980)
	- Defendants: manufacturer (Audi), importer (Volkswagen), regional distributor (world-wide Volkswagen), dealer (Seaway).  Distributor and dealer fighting personal jurisdiction.
	- Woodson is judge, Writ of Prohibition to Oklahoma Supreme Court.
	- Do Oklahoma courts have in personam jurisdiction over non-resident dealer and distributor when car was sold in New York?
	- Audi/Volkswagen have nationwide marketing, dealerships, thought less likely that they would not have personal jurisdiction.  Could even triggered Rule 11 sanctions.
	- Minimum contacts
		- Protect defendants from inconvenient forum
		- State sovereignty
	- Five factors in fairness
		- Burden defendant
		- States interest
		- Plaintiff convenience
		- Interstate - efficient
		- Substantive social policy
	- Still need minimum contacts
	- Foreseeability: could have predicted that car would make its way to Oklahoma
	- What does 'personally avail oneself to privilege of conducting business within state' mean?
	- Dissent
		- Plaintiff has to show sufficient contact or sufficient interest in litigation
		- Burden shifted to defendant to prove injury to constitutionally protected interest
	
_Asahi Metal Industry Co. V. Superior Court_
	- Part I: Unanimous
	- Part IIA: 4 (not sufficient minimal contacts--need to 'purposefully direct')
	- Part IIB: 8 (not fair / consistent with traditional notions of fair play and substantial justice)
	- Part III: 4
	- Ambiguous reading of _World-Wide Volkswagen_, two interpretations by lower courts:
		- Stream of commerce -- foreseeability (used by Supreme Court of California)
		- Pursefully directed (v. purposefully availing in _World-wide Volkswagen_)
	- 2 justices: first test of _World-Wide Volkswagen_ -- stream of commerce and foreseeability
	- 3 justices: fluid line, there were minimum contacts
	- Thus, 5 justices may have thought minimum contacts was met, but under different tests
	- 4 think minimum contacts were not met

_Jurisdiction Continued..._

_Asahi_ --> fair play and substantial justice as separate prong or possibly dominant

_Burger King Corp. V. Rudzewicz_ (p. 137)
471 U.S. 462 (1985)
	- Franchise in Michigan with Burger King (headquartered in Florida)
	- Contract action, diversity jurisdiction, Burger King wants to sue in Florida
	- "Purposefully directed" activities --> Reasonably anticipate being brought to court
	- Hanson v. Denckla: purposefully avail of benefits
	- Either avail of benefits *or* purposefully direct enough goods into stream of commerce such that you would reasonably anticipate you would be haled into court.  Latter becomes debate in _Asahi_  that is never totally resolved.
	- Five factors--_Burger King_ says to 'balance them' to determine if traditional notions of fair play and substantial justice have been met or not.
	- Greater minimum contact, more need for defendant to show unfairness
	- Lesser minimum contact, more fairness needs to be weighed
	- If defendant has minimum contacts and it is 'clear', then burden is on defendant to show why it would be unfair

Power
	- Status
	- Consent
	- Minimum contacts consistent with traditional notions of fair play and substantial justice
		- Residence (general jurisdiction)
		- Incorporation (general jurisdiction)
		- Conglomeration of other contacts
			- Property is *a* contact, but not sufficient to establish minimum contacts

_Washington Equipment Manufacturing Co. v. Concrete Placing Co._ (p. 148)
85 Wash. App. 240, 931 P.2d 170 (1997)
	- Idaho company doing business in Washington, registered in Washington and designated an agent.  Is this sufficient for general jurisdiction?
	- Suing for 1994 contractual action; company registered and had agent in 1985 and 1986.  Separate incidents.
	- Plaintiff thinks registration is continuous and substantial sufficient to be general jurisdiction; Court looks at legislative intent of registration statute, but finds no evidence that registration would establish general jurisdiction.

_Burnham v. Superior Court_ (p. 150)
495 U.S. 604 (1990)
	- Scalia and three others: presence means you don't need to look at fair play and substantial justice.
	- Brennan plurality: fair play and substantial justice are met here.
Summary of Personal Jurisdiction up to this point...

_Burnham v. Superior Court_ (p. 150)
495 U.S. 604 (1990)
	- Footnote 1 (p. 152): distinguishes between presence and minimum contacts (former applies to individuals, second to corporations).
		- Distinguish from _Washington Equipment Manufacturing_--defendant is non-resident corporation; _Burnham_ is an individual who has stepped into state.
	
_Pennoyer v. Neff_ 1877
	- In rem jurisdiction over individual -- general jurisdiction.  14th amendment sets limit on personal jurisdiction based on State Sovereignty.

_International Shoe_ 1945
	- In personam jurisdiction over corporation -- specific jurisdiction.
	- Minimum contacts consistent with traditional notions of fair play and substantial justice.
	- The more contacts present, the less the claim needs to be relevant to the contacts.  The closer the claim comes to the contact, the fewer contacts necessary for jurisdiction.
	- Single act that is origin of claim gives specific jurisdiction.
	- Minimum contacts are required.  Enjoying benefits of state is one way which you may have minimum contacts.

_Shaeffer_ 1977
	- In rem over individual directors, attached 'false stock' to get jurisdiction, general jurisdiction (for activities Directors did outside of State of Delaware), some Directors had never set foot in the state of Delaware.
	- Cannot attach property for purpose of getting general jurisdiction.  Does not constitute substantial and pervasive.  
	- Property in the state still serves as a minimum contact.  Could be one of many contacts that might get to general jurisdiction, or property itself might be minimum contact if you are suing over property.
	- Attachment prior to subject matter jurisdiction attaching does not give personal jurisdiction (overturning _Pennoyer v. Neff_, where quasi in rem jurisdiction allowed attachment of property to get jurisdiction).
	- _International Shoe_ is only test
	- "Expects to benefit"
	- Brennan strong dissent on fairness--strong state interest--should not have applied _International Shoe_, but should have sent case back to Delaware for test to be applied
	- No personal jurisdiction

_McGee v. International Life_ 1957
	- Yes, personal jurisdiction in personam corporate, national stream of commerce, mail to customer in California, specific jurisdiction.

_Henson v. Denckla_ 1958
	- In personam, corporate, specific jurisdiction, mail is not sufficient for 'purposeful availment' of specific jurisdiction.  No jurisdiction.

_Worldwide Volkswagen_ 1980
	- In personam, corporate, specific jurisdiction.
	- Minimum contacts has two functions:
		- Protect defendant
		- Make sure state operates within its constitutional limits
		- 5 factors for fair play and substantial justice
		- Even if not unfair to defendant, still need to have minimum contacts.
		- 'Real foreseeability vs. mere foreseeability'.
			- Real foreseeability of the likelihood that you could be haled into court in the forum state.
			- Or Purposeful availment--if you put it in stream of commerce and foresee that it will be purchased by consumers in forum state then you have purposeful availment.
	- Brennan's dissent: just look to fairness.  Look at defendant and interest of forum state.  "Purposeful injectment" into stream of commerce should be sufficient to meet test of purposefully availing.
	- No personal jurisdiction

_Burger King_ 1985
	- In personam, corporate over individual, specific jurisdiction.
	- Purposefully availing or purposefully directing (stream of commerce).
	- Fair play, substantial justice, five factors
	- Yes personal jurisdiction over non-resident defendant who did not act physically within state


_Asahi_ 1987
	- In personam, corporate, specific jurisdiction.
	- Placing in stream of commerce
	- Action -- purposefully directed towards forum state
	- 8 agree that personal jurisdiction is based on 'fairness'
	- Scalia doesn't approach fairness at all
	- Failure to find a common standard for minimum contacts

_Burnham_ 1990
	- In personam, individual, general jurisdiction
	- 4-4 split
	- Maybe presence trumps minimum contacts, based on 'traditional' notions of fair play and substantial justice
	- 4-4 as to whether presence is test or minimum contacts
	- Yes, personal jurisdiction

_Washington Equipment_ 1997
	- General jurisdiction, corporate, in personam.
	- Must have substantial and continuous minimum contacts; registering and having an agent is not sufficient
	- Non-resident and corporation (distinguish from Burnham)

_Consent_

_Carnival Cruise Lines, Inc. v. Shute_ (p. 169)
499 U.S. 585 (1991)
	- Purchase tickets in Washington, sue in District Court in Washington
	- Carnival Cruise is located in Florida and ticket has 'forum selection clause'
	- Had notice
	- Fairness Analysis
		- Convenient to defendant
		- Judicial resources
		- Plaintiff benefits from reduced fares
		- No bad faith
		- Plaintiffs concede notice
	- Language and Negotiations
		- Carnival Cruise had more specific language
		- But is something typed on a ticket something one would expect to be contractually binding

_Wuchter v. Pizzutti_ (p. 174)
	- Statute treats use of roads by non-resident motorists as basis for power
	- Statute struck down because no notice is given by statute.

_Dee-K Enterprises, Inc., v. Heveafil Sdn. Bhd._
982 F. Supp. 1138 (E.D. Va. 1997)
	- One of few remaining difficult issues in venue
	- Group of American defendants and group of foreign defendants
	- 12(b)3 improper venue
	- Anti-trust action
	- First (b)2 personal jurisdiction analysis
	- 4(k)1
	- 4(k)2 -- if you are suing under federal subject matter jurisdiction (federal question), can aggregate all of contacts defendant has with US and bring them into federal court.
	- Defendants are subject to personal jurisdiction in United States.
	- Then (b)3 analysis--venue analysis
	- 1391(b) rather than (a), not a case which is solely diversity jurisdiction [ (a) is for cases where subject matter jurisdiction is based solely on diversity]
	- Don't go to (b)1 because not all defendants reside in same state.
	- If any one defendant is found under (b)3 then you can have venue there.
	- Need to look at contacts not with whole state but with the specific judicial district
	- Need to establish subject matter jurisdiction, personal jurisdiction, and venue for each defendant.

Forum non conveniens and Piper Case: court says 'I don't want to hear it' even after making it through all the hopes necessary to get subject matter jurisdiction, personal jurisdiction, and venue.

Three statutes allow transfer:

§1404: change of venue
	- 1404(a)--two good venues.  Allows court to transfer from one good venue to another good venue.

§1406--wrong venue.  Court will dismiss or transfer (if in the interest of jutice).

§1631--allows for transfer (subject matter jurisdiction).

Case is not dismissed under these statutes.

12(b)1--case can be dismissed for lack of subject matter jurisdiction.
	(b)3--improper venue (dismissal)

_Piper Aircraft v. Reyno_ (p. 204)
454 U.S. 235 (1981)
	- Air crash in Scotland, representatives of decedents file case in California against aircraft manufacturer Piper (Pennslyvania) and Ohio Corporation that made some of the parts.
	- US Law is more favorable to plaintiffs, defendants consent to jurisdiction in United States.
	- Defendants might file Rule 12(b)2 motion initially--but they don't.  Defendant must have met _International Shoe_ test--must have had sufficient minimal contacts with California.  Instead, they use 1404(a) (two good venues) to request transfer to Pennsylvania.  More convenient to litigate in Pennslyvania than in California.
	- Then--'actually this isn't convenient, we want case dismissed under forum non conveniens'.
	- District Court says yes--go back to Scotland.
	- Appellate Court reverses--should never use forum non conveniens when the law in the other forum is less beneficial to plaintiffs.
	- Supreme Court reverses appellate court and reinstates district court decision--standard of appeal is 'clear abuse of discretion'.
	- _Gilbert_ sets up 'private factors and public factors'
		- Private factors: Access to proof, ability to subpoena witnesses, get witnesses into court, view premises, and all other practical matters for efficiency
		- Public factors: court congestion, local interest in case, laws that govern, burden of jury duty
	- P. 208: third-party defendant mention---but this is only for derivative liability--something wrong with court's reasoning here.  Unless derivative liability/joint tortfeasor is set out explicitly in state statute, this doesn't work.
	- Foreign plaintiff--less deference to choice of forum; benefit of judicial system to plaintiff--irrelevant.

Subject matter jurisdiction

(after this, can look at exams)

Subject matter jurisdiction is power of court to hear case.

	- Federal Question Jurisdiction
		- _Mottley_ case--Mottleys were in train wreck, case settled.  Mottleys got free railroad passes among other things.
		- Later, congress passes statute forbidding free passes.
		- Railroad reneges on settlement.  Mottleys are suing to say 'specific performance'--recognize our passes, we are exception to statute.  Second, unconstitutional--no due process in taking away passes.
		- Could stipulate that Mottleys had passes and can no longer use them.
		- Court says plaintiff's claim in just breach of contract.  Doesn't matter that constitutionality of statute is mentioned in complaint.
		- When deciding if there is a federal question, (1331 "arising under"), look at plaintiff's claim...  Statutory issue is part of defense, not claim.  Thus not federal question for purposes of 1331 federal question jurisdiction.
		- Must have federal question in 'well-pleaded complaint'--what would your complaint be if you were not anticipating defendant's defense.

Problems on Page 216
	- What is actually litigated does not matter for Federal Question but rather what is the basis for claim
_Mottley_
	- What if declaratory judgment is sought?  Railroad seeks declaratory judgment as to whether revoking life pass in lawful or not.  Parties are flipped.
	- Problem 7 p. 223
		- Need to look at what the suit would have been that the 'real' plaintiff would have brought.
		- Look at 'underlying coercive action' (rather than plaintiff's well-pleaded complaint)
	- Court wants clear cut/bright line test to reduce number of federal cases

Compare Article III with §1331:
	- §1331 narrower construction.  Court interprets §1331 in ruling on _Mottley_.  Article III is not self-executig.  I.e., court interprets 'arising under' more narrowly in §1331 then in Article III.
	- Mottleys take case back to state court, appeals back to supreme court, ends up losing on the merits there.  §1331 applies to district courts only.
	- Congress could change _Mottley_ rule by changing §1331 (would not have to amend constitution)

§1332 - diversity jurisdiction
	- Doesn't say it's protecting the home state party
	- Must have diversity on opposite sides--could have multiple parties on same side from same state

_Mas v. Perry_ (p. 229)
489 F.2d 1396 (5th Cir. 1974)
	- If Judy is citizen of France, §1332 doesn't apply (only applies to citizens).
	- Where to look to find citizenship for purposes of §1332?
		- Starts to resemble personal jurisdiction
	- Wifes damages much greater--imaging of women, assumes 'peeping tom' is straight.

Example:
	- Mother and two daughters live in California, Husband in Massachusetts
	- Case 1: Child custody & support divorce on basis of sexual abuse by husband
	- Case 2: Tort action
	- First case would not be federal diversity status (according to Ankenbrandt (p.235))--divorce.  Second case could be.
	- Why do courts say diversity jurisdiction excludes divorce cases?  (you can get personal jurisdiction, but not subject matter jurisdiction).
	- In England, ecclesiastical courts heard these sorts of cases.

Corporation Cases
§1332C: note 8 on 234.
	- Look at 'nerve center' and 'muscle center' to determine citizenship of corporation

Note 5:
	- Citizen of Mexico and Citizen of Japan --no diversity under §1332
	- Califonia v. Mexico & Japan -- diversity jurisdiction 
	- California & Mexico v. New York and Japan -- diversity

_Saadeh v. Farouki_ (p. 236)
107 F.3d 52 (D.C. Cir. 1997)
	- Mr. Saadeh -- Greek National v. Mr. Farouki -- Jordanian National, permanent resident alien in US (INS category), living in Maryland
	- 'Intent of congress' in amending §1332 to provide for resident aliens--does not appear to be to allow foreign citizens to sue each other
	- Court believes congress was trying to keep permanent resident from suing in-state citizen in Federal Court.
	- Court cannot rule forum non conveniens without subject matter jurisdiction.  Since Court reads statute to say they don't have power, cannot rule forum non conveniens.
	- If they had read statutory language to allow subject matter jurisdiction, they could then rule forum non conveniens on the basis of five public and four private interests.
	- Farouki did not challenge subject matter jurisdiction on appeal; court ruled on its own.  Faruki had become Citizen, thus as long as case was within statute of limitations, he could refile under citizenship diversity.
	- Court reads statute non-literally to avoid having to decide whether statute is consistent with Article III of Constitution.

P. 243 -- when you can aggregate claims in order to reach diversity.

_Supplemental Jurisdiction_
	- Every claim might have a basis in subject matter jurisdiction.
		- Can't say 'I have Federal Question', thus add any other claim
	- §1367: Supplement Jurisdiction--if you have a State Law claim that is sufficiently tied to federal claim, you can give district court jurisdiction over State Law claim.  Article III uses 'case or controversy'--has to be 'same case or controversy'.

1331 - Federal Question
1332 - Diversity
1367 - Supplemental Jurisdiction

1331 and 1362 narrows jurisdiction, 1367 broadens.

_United Mine Workers v. Gibbs_ (p. 244)
383 U.S. 715 (1966)
	- Gibbs is mine superintendent
	- NLRA § 303 illegal to picket original mine (Gibbs' claim).
	- Jury finds for plaintiff, judge enters JNOV on claim 1--as a matter of law, is a 'primary boycott', not illegal under § 303.
	- Second Claim: Gibbs had contract for hauling.  UMW 'interfered' with second contract, again made § 303 claim, jury also finds for plaintiff.  Judge enters JNOV, not claiming that it is covered by § 303 but because damages were not proven.
	- Third claim under NLRA § 303: Gibbs lost other contracts due to 'stigma'.  Judge enters Directed Verdict because there was no evidence to support claim.
	- Final Claim: State law claim for conspiracy to put Gibbs out of job, tort.  Finds for plaintiff, supreme court reverses.
	- First three claims: § 1331.  Federal Law must be part of well-pleaded complaint (_Mottley_).  To join other claims, must be:
		- Power
			- Common nucleus of operative fact
			- Substantial
			- Expectation of one judicial proceeding
	- How could supreme court retain jurisdiction when federal question claims have been defeated?
		- Common nucleus
		- Why were claims 1 and 2 substantial enough federal claims?  Went to jury, even if plaintiff does not prevail.
		- Common nucleus of operative fact --> Article III 'same case or controversy' .  Court interprets 'case or controversy' of Article III to mean claims in case with some core of operative fact--judicial economy.
	- Does court *have* to exercise supplemental jurisdiction under Gibbs test, or does it just have power?
		- Discretion
			- Judicial economy
			- State claim predominates
			- If claims didn't go to jury

Congress codifies _Gibbs_ in 1367(a) and (c)

_Temple (MS) v. Synthes (PA)_
	- Were doctor and hospital indispensable parties? (Rule 19)
	- Pretend, instead, there exists derivative liability (Rule 14)
	- Doctor is MS, hospital is LA
	- Once defendant brings in Doctor and Hospital:
		- Temple might bring amended complaint (rule 15) against doctor and hospital
		- Doctor and hospital might bring counterclaim against Temple (state law tort claim)
		- Temple could then bring counterclaim back against Doctor/Hospital (state law)

_Kroger v. Omaha Public Power District_ (p. 920)
523 F.2d 161 (8th Cir. 1975)
	- Kroger killed when crane hits power line
	- Widow (Iowa) sues OPPD (Nebraska).
	- Rule 14 permits plaintiff to assert claims against third party defendant-Owen Equipment.
	- Owen Equipment is incorporated in Nebraska but principle place of business is Iowa.  1332(c) says corporation is citizen of both.
	- Owen does general denial, Kroger does not look to see that Owen denied principle place of business.  Owen then asserts no subject matter jurisdiction because diversity is destroyed.
	- Supreme Court reverses 8th circuit decision--rules that there is supplemental jurisdiction.
		- Kroger's claim against Owen is 'new claim'--began as indemnification joinder.
		- If court allowed supplemental jurisdiction, could open door to collusion where plaintiff picks defendant who is diverse, knowing defendant will implead non-diverse third party.
		- Supplemental jurisdiction is largely for benefit of defendants, not plaintiffs.
			- Compulsory counterclaim, impleader would have § 1367 jurisdiction.
			- For *compulsory counterclaim* do not need other independent basis for jurisdiction (= § 1367 basis for jurisdiction).
			- For *permissive counterclaim* need diversity and $75,000 (§ 1332) or federal question (§ 1331).

§ 1367(b)
	- Exception to part (a), court shall not have jurisdiction over claims by plaintiff in diversity action over persons made parties under Rules 14, 19, 20, 24--codification of _Kroger_.  No § 1367 supplemental jurisdiction.

Is plaintiff = plaintiff in counterclaim??  If doctor/hospital in _Temple_ brings counterclaim against Temple then Temple becomes defendant in counterclaim, could Temple then bring counterclaim against Doctor?  Maybe.

_Finley v. United States_ (p. 250)
490 U.S. 545 (1989)
	- Cannot bring in additional party in Federal Question case.
	- Congress then overturned Finley with §1367.  "Such supplemental jurisdiction shall include claims that involve ... joinder of additional claims and parties."

Review
	- Article III §2 - Constitutional Basis, Requires Statutory Enactment (not self-executing)
		- §1331: Federal Question Jurisdiction
			- Claims brought under constitution, laws, or treaties of United States
			- Well-pleaded complaint rule in _Mottley_ (§1331 interpretation)
				- Look to plaintiff's case, not defendant's defenses, even if plaintiff incorporates defense into complaint.
				- Under declaratory judgment (§2201-2202), look at what defendant's case would be if defendant brought case.
					- §2201/§2202 cannot expand jurisdiction--are not jurisdictional statutes.
		- §1332: Diversity Jurisdiction
			- Must have both complete diversity and $75,000
			- Complete diversity is interpretation of §1332, not of Article III.
			- Must be U.S. citizened and domiciled in a state or 'alien'
				- Taken up residency
				- Intent to remain
				- Corporation: §1332(c) -- incorporation place and principle place of business
		- §1367: Supplemental Jurisdiction
			- Under _Gibbs_, power and discretion analysis
				- Common nucleus of operative fact (Article III requirement)
				- Expectation of Single Case
				- Statutory enactment--now (under _Gibbs_ there was no statute)
			- Also codifies _Kroger_ in §1367(b)
				- Plaintiff can't bring claim against non-diverse party brought in under 14, 19, 20, 24.
				- _Finley_ was overturned by §1367(a) -- can bring in parties under federal question

_Removal_
	- §1441
	- Problems (p. 251)
		- P sues D for defamation in State Court, D believes statement is protected under First Amendment.  District Court would not have had original jurisdiction, thus no removal.
		- P sues D for copyright infringement in state court.  Defendant could remove because district court would have original jurisdiction--§1441(a).
		- Equal protection clause claim.  Yes, removable, federal question.
		- §1441(b) can only remove if action not brought in home state of defendant, so defendant cannot remove.
		- Add civil rights claim--yes, federal question trumps home state clause. §1441(c) says you can remove entire case.
		- 'None' of the parties in home state, no removal.

	-& Caterpillar case, quiz III
_Lewis v. Caterpillar, Inc._ (p. 252)
519 U.S. 61 (1996)
	- Lewis (KY) v. Caterpillar (Delaware/Illinois) and Whayne (KY)
	- Liberty Mutual intervenes (Massachusetts)
		- Wants to recoupe losses from Caterpillar an Whayne
	- Lewis settles with Whayne.
	- Caterpillar wants to remove to federal court.  Federal court must have 'original jurisdiction' under §1441(a).
	- Still exists claim between Liberty Mutual and Whayne. Also settlement between Lewis and Whayne had not been accepted by court.
	- Removal had to take place within one year (statute of limitations) §1446(b) for diversity actions §1332.
	- District court allowed removal to federal court.  Lewis moves to remand back to state court.
	- Before trial, Liberty Mutual settles with Whayne and settlement is approved.  There is then complete diversity.
	- Final judgment for defendant.  Appeal to Court of Appeals--removal was incorrect because there was no diversity at time of removal.
	- Supreme Court overrules Court of Appeals--for sake of judicial efficiency.  Even though technically Court of Appeals was correct (no diversity at time of removal), will still allow removal in interest of judicial efficiency.

Cf. _Gordon v. Steele_ and _Mas v. Perry_
	- Time of filing
	- Intent to remain

§1441 does not provide new subject matter jurisdiction.  Only applicable when federal court had jurisdiction somewhere else.

	- Exam guidelines
		-& Start working in teams on exams (don't look at answers)
		-! Only thing we don't know yet is Erie Doctrine (=choice of law, state, federal, which state)
		-& Make outline
			- Could work from Federal Rules, Course Syllabus, Flowchart from Packet
			-! Case names of major cases
				- Celotex, International Shoe, Mullaine
		- Not based on Buffalo Creek
		- Two questions, each with fact patterns
		-* Time is of essence.  Four hour exam.  Probably two hours per question.
			- 1/3 of time reading & outlining
			- 2/3 of time write
			- If you run out of time, move on to next question
		- Method
			- Who are you in exam, what are you supposed to answer?
			- Outline facts
				- Who are parties, where are they from, what are statutes involved
			- Spot issues
			- Rules/case law/standards
			- Apply to facts
			- Write:
				- Overview of where you're going to go
				- Go there
				- Tell me what to do

_Quiz 3_

	- Where can survivors sue Pittston?
		- Personal jurisdiction
			- Power (Long Arm Statute)
				- Need to meet International Shoe Test of 'sufficienct minimum contacts consistent with traditional notions of fair play and substantial justice'
				- Can sue in Delaware and Virginia (incorporation is sufficient for general jurisdiction)
				- 'Nerve/muscle' etc. goes to subject matter jurisdiction for purposes of diversity, not personal jurisdiction
				- Could get specific jurisdiction in West Virginia
				- New York--need to do International Shoe Test
				- Then look at five factors from Burger King/Worldwide Volkswagen
			- Notice (Rule 4)
				- Mullaine -- reasonable under circumstances
		- Venue
			- §1391: (a) diversity case, (b) not just diversity case
			- (c) -- any judicial district in which it is subject to personal jurisdiction.
			- (a) -- a judicial district where any defendant resides, if all defendants reside in same state
			- (b) -- a judicial district where any defendant resides, if all defendants reside in same state
		- Subject matter jurisdiction
			- If well-pleaded complaint includes Federal Question, §1331 allows jurisdiction in any federal district court
			- If plaintiffs did not raise Federal Question, need to decide where Pittston resides for purposes of diversity--§1332(c)
				- Corporation resides both in any state in which it is incorporated, and in any state where it has its principle place of business
				- Pittston is definitely citizen of Delaware and Virginia, and maybe New York ('nerve and muscle test')
				- If New York is nerve/muscle center, we can sue in federal court in West Virginia, Delaware, Virginia, and New York.
				- If West Virginia was principle place of business (or incorporated in West Virginia) then no subject matter jurisdiction in federal court under diversity §1332.
		- Lots of case law on Personal Jurisdiction, go into depth on this issue

	- Federal question jurisdiction in declaratory judgment?
		- Need to meet required interpretation of §1331 (_Mottley_ case).  Federal question needs to be part of plaintiff's well-pleaded complaint (not raising defense)--declaratory judgment statutes (§2201-2) do not expand jurisdiction.
		- What would underlying coercive action be?  What would defendants bring as claim if this weren't declaratory judgment?  If defendants claim would include federal grounds, then yes.
		- Difficult part: knowing whether defendants would have brought action involving federal claim
	
	- Survivors v. Pittston suing for damages
	- Residents v. Pittston for injunction
		- Pittston will try to bring claim preclusion
			- Claim was or could have been brought in case 1
			- Fryer case: same evidence, same transaction or occurrence
			- Survivors v. residents -- maybe some residents moved in after flood, so they couldn't even have been parties to first case
			- Need mutuality of parties (or in privity with case 1 parties)
				- Searles Brothers -- legal representation, virtual representation with case 1
	- Issue preclusion
		- Litigated and determined (Parks case)
		- Essential to judgment--restatement I and II
			- Restatement I: two issues, apply to both
			- Restatement II: apply to neither
	- No need for mutuality of parties
	- Need to look at defensive vs. offensive preclusion
	- Offensive preclusion--less favored form of preclusion.
		- Did Pittston have full and fair opportunity to litigate in Case I?
		
Quiz questions continued...

4. No claim or issue preclusion in first case, nor second case (inconsistent adjudication).

5. Survivor v. Pittston (NY Company) in West Virginia Federal Court--subject matter jurisdiction is okay
	- Then: personal jurisdiction-->_International Shoe_ test--sufficient minimum contacts consistent with fair play and substantial justice
	- Venue-->1391a: (diversity action), then 1931c (citizenship of corporation)
	- Indemnification claim Pittston v. Dasovich -- could be diversity jurisdiction (over $75,000) or supplemental jurisdiction (1367(a))
	- 1367(a)--covers joinder of additional parties for claims arising out of same case or controversy
	- 1367(b) does not apply because Pittston is not plaintiff (although this is interpretation of Pittston not being plaintiff, even though it is plaintiff in third-party claim against Dasovich)
	- Personal jurisdiction over Dasovich by status as resident or presence in state (Scalia).
	- Joinder rules: Rule 14 allowed joinder of Dasovich.
	- Dasovich counterclaims against Pittston -- under Rule 13 (and Rule 14--may bring counterclaims)
		- If claim is compulsory, can get supplemental jurisdiction
		- If claim is permissive, you can claim diversity subject matter jurisdiction between Dasovich and Pittston
	- No problem with personal jurisdiction of Dasovich over Pittston, since Pittston is already in case
	- Survivor claim against Dasovich (third-party defendant) under Rule 14 (a) sentence 7, and Rule 15 (when complaint can be amended)	
	- Personal jurisdiction and venue are fine
	- Subject matter jurisdiction -- no diversity jurisdiction.  But--could get supplemental jurisdiction?  No--under 1367(b) no supplemental jurisdiction for a claim by plaintiff against party brought in under Rule 14, 19, 20, or 24.

_Erie Doctrine_
	- Evolves over time, like personal jurisdiction

_Swift v. Tyson_
41 US 1 (1841)
	- Interpretation of Rules of Decision Act -- § 34 1789 Judiciary Act (became 28 USC §1652)
	- Tenth Amendment: powers not delegated to Federal Government or prohibited to states are reserved to states.
	- Interpretation of word 'law'--court interpreted 'law' to encompass only state statutes

_Erie Railroad v. Tompkins_
304 U.S. 64 (1938)
	- Diversity jurisdiction: Tompkins is Pennsylvania Resident, event occurred in Pennsylvania, so Erie Railrod must either be incorporated or principle place of business is New York (incorporated).
	- Personal jurisdiction: New York Court has general jurisdiction over Erie because Erie is incorporated in New York (action happened outside of New York).
	- Under state law, Tompkins would have been held as trespasser, lower standard of negligence in Pennsylvania.  Question is 'do we apply federal common law or Pennsylvania state law?' (not New York law).  Wanton negligence in state law, ordinary negligence in federal law.
	- Court finds that § 1652 also applies to judicially created state common law.
	- Could have just done statutory interpretation of § 1652, but rather resort to constitutional argument, but never clearly state which part of constitution it is based on.
	- Don't mention 14th, 5th, or 10th amendment.
	- 'Federalism'/state-sovereignty argument: when does federal government have power, and when is it reserved to states?  Judiciary should not have power to legislate.
	- Article I, Section 8: Sets out pieces of government given to federal congress.  Tenth amendment says if it is not delegated by constiution then it is given to states.  BUT--tenth amendment/article 1 section 8 do not clarify what 'law' means.
	- 'Wouldn't look right to reinterpret 100 year old precedent' -- need to use constitutional grounds
	- Reed's concurrence
		- Judiciary Article -- Article III § 2 and 'necessary and proper' clause of Article I--claims congress could legislate back to Swift v. Tyson.
	- Problems with Swift v. Tyson
		- Forum shopping
		- 'Vertical uniformity' -- would weigh in on side of federal common law
		- 'Horizontal uniformity' -- would weigh in on side of state common law
		- Court believes horizontal uniformity more important than vertical uniformity.
	- (question--if we don't want forum shopping/difference in court judgment standards, why do we even have two separate court systems?)
		- Federalism Argument--importance of states' rights
	- Federal Courts should prioritize procedure and use state's substantive law.  "No one would doubt that Federal Courts can't apply their own procedural rules."  (becomes contested later).

_Klaxon Co. v. Stentor Elec. Mfg. Co._ (p. 272)
313 U.S. 487 (1941)
	- When choosing between State Laws, use Forum State Law to determine conflict of law.
	- E.g., in _Erie_ judge first sits as New York State Judge in determining conflict of law and then sits as Pennsylvania State Judge in deciding case.

Erie doctrine continued...

_Guaranty Trust Co. v. York_ (p. 276)
326 U.S. 99 (1945)
	- Lower court had dismissed based on claim preclusion
	- Court of appeals reversed on claim preclusion, because there had been a change in the law between the first case and the instant case ('case could not have been brought')
	- Question now is whether case can continue based on state statute of limitations and federal equity court standard.  Federal Court in Equity did not have Statute of Limitations on this matter, Statute had expired under state rules.
	- Court of appeals allowed Federal Court standard, supreme court reverses saying must follow state law statute of limitations.
	- Doubt arises from question of whether Statute of Limitations is procedural or substantive.
	- Court holds that there is no bright line between substance and procedure
	- 'Outcome determinative test'
	- Merely matter of means to recovery, Erie does not apply.
	- Substantively--outcome-determinative.
	-* Reinforces vertical uniformity.
	-* Breaks substance/procedure dichotomy.
	- Outcome determinative is not a fixed meaning--paper size court rules example.
	- 'significantly' effect the result --> 'substantially the same' (p. 277)
	- State interest is much stronger than federal interest in statute of limitations--'durability of claim'--beginning of balancing test

Follow-up cases on _Guaranty Trust_ (p. 280):
	- _Ragan v. Merchants Transfer_ trumps Rule 3 (when action commences)
	- _Cohen v. Beneficial Indus. Loan Corp._ trumps Rule 23 (bond to sue corporation).
	- _Bernhardt v. Polygraphic_ state law on enforceability of arbitration.
	- _Woods v. Interstate Realty Co._ state law on where corporation can sue.

_Byrd v. Blue Ridge Rural Electric Cooperative_ (p. 281)
356 U.S. 525 (1958)
	- Question is whether judge or jury should decide whether employee is statutory employee
	- Under Federal Law, Jury decides.
	- 'Could be outcome determinative' but not necessarily.
	- Two part test:
		- Bound up with state-created rights or obligations, if not then it is a form and mode of enforcing immunity.
			- South Carolina Supreme Court does not give any reasons for its decision, thus US Supreme Court concludes that jury decision is not inextricably tied up with the statutory rights.
		- Even if 'only a form or mode', Courts should adhere as close as people to State rules when outcome determinative.
		- Then weigh other interests/state v. federal state
	- Court finds Seventh Amendment weighs heavily on Federal Interest in Jury Trial.

Example situation--state law allows lawyer to question jurors, federal law only judge can question
	- Case law--important state reasons
	- Statute -- parse, legislative history
	- Are there studies, committee hearings, commissions, etc. on issue?

_Hanna v. Plumer_ (p. 284)
380 U.S. 460 (1965)
	- Federal Rule 4(d)(1) comes into conflict with state statute
	- First--is there a conflict with State Law?
	- Then--is Rule consistent with Rules Enabling Act and constitutional?
	- If yes, then apply Rule.
	- Old "substance/procedure" dichotomy.
	- Thus: apply _Erie_ when there is no rule or statute.  In _Erie_ situation, go to _Byrd_ test.
		- Policy: avoid forum shopping, avoid inequitable administration of the laws.
	
Review Sessions:

12/6 Th 10:30-12 Room 201
12/11 Tue 10-12 Room 204 (Exam '99)

Laura's Office Hours
12/10 Mon 10-12:30pm Room 54
12/12 Wed 12:15-1:30pm Room 78
12/13 Thu 10-12pm Room 78

_Hanna v. Plumer_
	- Modifies _Guaranty Trust_ doctrine
	- Rule/statute on point -- go with rule
	- Otherwise--if outcome determinative
		- Forum shopping
		- Inequitable administration of laws
	- Question becomes--when is Rule On Point?

_Burlington Northern Railroad v. Woods_ (p. 296)
480 U.S. 1 (1987)
	- Alabama Rule requiring failed appellant to pay 10% damages, Federal Rules of Appellate Procedure 38 allows damages of single or double costs if appeal is frivolous.  Apparent conflict.
	- Plaintiff claims Statute does not conflict with Rule, claiming that FRAP-38 only applies to frivolous appeals.
	- Court disagrees--finding Rule 38 to cover all appeals.

_Stewart Organization, Inc. v. Ricoh_ (p. 297)
487 U.S. 22 (1988)
	- Question is whether to enforce forum selection clause--Alabama state law says no enforcement of forum selection clause.
	- District court sees matter as contract law -- 'state substantive law' -- thus use Alabama law, don't enforce forum selection, no transfer.
	- § 1404 does not say anything about forum selection clauses, simply says forum may be transferred.
	- Under _Hanna v. Plumer_, perhaps move to outcome determinative test.
		- But forum selection clause is not outcome determinative (more like judge v. jury example).
		- Go to state interest
			- State might want to protect citizens from forced forum selection, encourage vertical uniformity, state has interest in enforcing its own laws, legislative history
	- Court does not look to second test of Hanna--instead they decide there is a Federal Statute "on point" -- 1404.

_Gasperini v. Center for Humanities, Inc._ (p. 297)
116 S. Ct. 2211 (1996)
	- Question is whether judge can reduce amount of damages that jury awards
	- New York law allows appellate court to modify award if it 'deviates materially from reasonable compensation' while Federal basis is seventh amendment/'shock the conscience.'
	- Only district (lower) court can modify award, since seventh amendment part applies to appellate courts.

_Summary of Erie Doctrine_

	- Look at if there is conflict between federal and state law (both statutory and judicially constructed)
	- If no conflict--then apply both ('merge') (argument of plaintiff in Burlington Northern Railroad)
	- Unless Federal Law preempts --> Lincoln Mills (not essential for this course)
	- If there is a federal rule/statute on point, is it consistent with Rules Enabling Act/Constitution?
	- If no, apply state law
	- If yes, Hannah Test 1 says apply rule
	- If no federal rule/statute on point, then you have a 'pure Erie problem', look to _Bird_
	- Two tests of _Bird_:
		- If all you have is Federal Common Law (no statute/rule) in conflict, are there state created rights and obligations that would require state law to be followed, then apply State Law
		- Then, go to Outcome Determinative test, look to twin aims of _Erie_ (new test)
			- Will this encourage forum shopping?
			- Encourage inequitable administration of laws?
		- If not Outcome Determinative, use Federal Common Law.
		- If it is Outcome Determinative, look to other prong of _Bird_:
			- Other compelling reasons to apply one or the other (strong federal or state)

_Buffalo Creek Example_

P. 242-243 aggregating claims money issues
subject matter jurisdiction in state court--courts of specific jurisdiction (probate, housing, etc..)

First Subject matter jurisdiction:
	- 1332, 1332, 1367
Once you have subject matter jurisdiction you can go to any federal court.  Then limiting factors are personal jurisdiction and venue.

Under personal jurisdiction, need:
	- Power
		- Constitutional Test (14th amendment) outside parameters
			- _International Shoe_
		- Statutory/Rule Test
	- Notice
		- Constitutional
			- _Mullane_ 'reasonable under the circumstances
		- Rule 4

What claims/parties?
	Rule 18
	Preclusion
	13(a),(b),(g) (crossclaims, counterclaims, etc.)
	14 19 -- joinder of parties, 23 class action, 24 intervention
	Interplay between 13, 14 and 18... p. 919, 3(b)
	Rule 15 for amending complaint
	Rule 21 -- misjoinder is not grounds for dismissal but for severance

Cite the rule as well as the test.

Cite major cases:

Summary judgment -- _Celotex_
Personal jurisdiction -- _International Shoe_, _Mullane_

If question says 'what pre-trial motions would you file' -- go immediately to Rule 12

When would case be dismissed?
		- 12(b)(6) - failure to state a claim upon which relief can be granted, only look at claim
			- Must have alleged something for each element of claim
			- Rule 8(a) allows for 'conclusory allegations', don't have to prove that you can meet the test (except in Fraud--Rule 9)
			- § 1983 no longer has heightened pleading
		- 56 - summary judgment, going beyond pleadings
		- 50a - judgment as a matter of law (directed verdict)
		- 50c - jnov -- have to have done 50a
			- 56, 50a, 50c all have same standard; sufficient 'evidence' on each element of claim such that case should go to jury (such that reasonable jury could find for moving party)
			- _Celotex_ changed summary judgment standard to be same as directed verdict, jnov
			- Unlike _Prince_ -- copy packet -- pre-_Celotex_ standard used in Buffalo Creek
		- 59 - new trial - serious miscarriage of justice for verdict to stand
	No jury -- rule 52

_Sample Exam_ 2000

Cohen v. Commissioners
Fed Court -- Southern
Jury Trial

Complaint:
	- P1 subject matter jurisdiction
	- P2 voters/parties
	- P3 intentional discrimination
	- P4 violation of state law requiring 'clear ballot"
	- P5 14th amendment, § 1983 action 'state action, violation of federal law', requires discriminatory intent and proximate causation
	- P6 relief: new vote

Answer:
	- Admit P1
	- Admit P2
	- Deny P3 except for plaintiff's intent and how she voted
	- Deny P4 except for state statute
	- Deny 5 and 6
	- Failure to join indispensible parties 12(b)(7)
	- Counterclaim:
		- P1 demonstration
		- P2 slander -- requires intentionally and maliciously speaking falsely
		- P3 relief $100K
	- Plaintiff's answer to counterclaim:
		- Admit demonstration
		- Deny slander
		- Deny relief
		- Demand jury trial
		- Defense of subject matter jurisdiction 12(b)(1) (and 'affirmative defense of "truth"')

District court ruled:
	- Defendant 12(b)(7) granted
	- Plaintiff 12(b)(1) granted
	- Plaintiff discovery motion denied
	- Defendant motion to strike jury granted
	- Defendant directed verdict (=judgment as a matter of law) granted

Evidence:
	- Plaintiff: Jury trial, 12(b)(7),discovery
	- Defendant: Subject matter jurisdiction, dismissal of counterclaim, Rule 11

Right to jury trial--only in 'suits at common law' under seventh amendment, thus dismissal of jury trial is appropriate since relief being demanded is to revote.

Counterclaim does ask for monetary damages.  But state statute says 'all cases raising voting violations shall be heard by a judge sitting without a jury.'

Erie options:
	- Federal question not diversity case, Erie does not apply
	- No conflict, counterclaim is not about voting violations

Only way court can have subject matter jurisdiction over protest claim is under § 1367 supplemental jurisdiction.

Rule 19: what sort of people would be indispensible under Rule 19?  19(a) only--no diversity issue since it is federal question.  Probably stretch.

Denial of discovery: looks like Erie situation but not diversity action (or federal rules on point), response: federal rules go to discovery in general but not specifically with state voting since there are special rules for voting, argue compelling state interest in preventing discovery as to local state laws.

Directed verdict: no evidence of intentional discrimination, no evidence that ballot wasn't clear.

Subject matter jurisdiction--can be raised at any time (does not matter that defendants have not previously raised these points)
	- § 1331 jurisdiction for federal question, § 1367(a) jurisdiction for violation of state law if arises out of same transaction or occurrence
	- Plaintiff was arguing that state was acting in violation of constitution

_Gibbs_ analysis -- discretionary piece -- in § 1367(c)

Rule 11
	- Easy answer: didn't do 'safe harbor' situation with 21 days written notice before you can file motion with court

Question 2

Paula - Northern
 v.
Dan - Southern (driver's license Northern)
Sam - Southern (owns ski lodge in Northern), 28 miles from Northern's border, 32 miles from accident
Susan - Southern (has brother in Northern)
AAA Gun Shop - Southern Corporation 200 miles from Northern's border, told they wanted gun for hunting in snow
West Rifle - Western 1200 Miles from Northern, national advertising in gun magazines, ships to retailers in most states but not Northern

Dan - DUI - convicted (criminal)
Civil - Widow of Bill Jones v. Sam for serving too much alcohol in 1997
Civil - Sam - owns ski lodge
Civil - antitrust action against West
	Finding that substantial number of West Rifles end up in every state in the union.

Want to sue Dan, Sam, and West Rifle in Northern Federal District Court, or Northern State Court in County if can't get federal jurisdiction.

	- Can you sue there?
	- What's the effect of prior litigation?
	- What discovery do you want and how can you get it?

To sue--
	Subject matter jurisdiction, personal jurisdiction, venue

Subject matter jurisdiction--straight diversity, over amount of controversy, no problem

Personal jurisdiction vis-a-vis each defendant
	- Long arm statute reaches as far as constitution, thus don't need to parse
	- Dan - single act, meets _International Shoe_ specific jurisdiction test.
	- Sam - attachment of ski lodge not sufficient to get jurisdiction.  ONE minimum contact, but not sufficient minimum contacts for general jurisdiction.  Argue close proximity to Northern and to accident.  Sam must have lots of customers that come in from Northern, etc..  Carded Dan, knew he was from Northern.
	- AAA / West Rifle - in order to meet _International Shoe_, would look to contacts in _Burger King_ or _Hanson_, etc..  Try to ask what was missing?

Venue
	- Fine in Center because accident occurred there

Civil action with Sam owning ski lodge will not have any preclusion
Civil action with Bill Jones v. Sam -- no claim preclusion because no mutuality of party.  No issue preclusion but could be probative.  Party against whom issue preclusion is being used must have had full and fair opportunity to litigate that issue.
Civil Action - antitrust action against West -- would want to use issue preclusion.  Would this be central to judgment?
Issue preclusion to prove Dan was drunk at the time he was driving -- Dan DUI conviction

Discovery
	What else would you need to show personal jurisdiction?

WHO AM I/WHAT IS QUESTION

	Co-op student in law firm
	What are options for bringing this case?  Can we join Cohen and Kelly as plaintiffs in Eastern Federal District Court in Northeastern?

FACTS

WHO ARE PARTIES

	Hank Cohen
		Lives in Octon, Northeastern (Norfolk County/Southern District)
		Met Sam Sands in San Antonio at language institute
		Damages of $40,000 expenses, $40,000 lost profits, for breach of contract in August 1999
		Rented space in "Capital"/ED/Suffolk for class
		Conducted negotiations from his home (Octon/SD/Norfolk)
	Nancy Kelly
		Lives in Octon, Northeastern (Norfolk County/Southern District)
		Met Sam Sands in San Antonio at language institute
		Damages of $12,000 for failure to come on cruise, plus damages for negligence in eye injury
		Initiated discussions in Texas, continued from home; tort occurred at home (Octon/SD/Norfolk)
	Sam Sands
		Lives in San Antonio, Texas
		Has bank account in Alpine, Northeastern (Berkshire County/Northern District) with $20,000
		Owns condo in Alpine worth $65,000 (lets family/friends use free of charge)
		Taught Spanish in Alpine to business executives 'for good pay' in December 1996, 1997		

STATUTES

	'Sufficiency of business' statute
	Long Arm Statute
		Personal jurisdiction over claims for acts arising out of:
			1. Transacts business in state or contracts anywhere to supply goods or services in state
			2. Commits a tortious act within state (except defamation)
			3. Commits tortious act without state causing injury to person or property within state, if:
				1. regularly does/solicits business, engages in any other persistent course of conduct, or derives substantial revenue in state
				2. expects or should expect act to have consequences in state and derives substantial revenue from interstate/international commerce
			4. owns, uses or possess any real property situated in state
	Venue Statute
		Case can be brought
			in county where defendant resides
			county where claim arose
			if multiple claims
				any county where a substantial part of events/omissions giving raise to a claim occurred
				substantial part of property that is subject of action is situated
	Service -- certified mail

ISSUES
	Subject matter jurisdiction--can we get all claims in federal courts?
	Preclusion--is there claim preclusion from one claim to the other?
		Is there issue preclusion?
	Venue--can we bring all claims in Eastern Federal District/Suffolk County/"Capital" Northeastern?
	Personal jurisdiction--can we get jurisdiction over Sands on all claims with long arm statute?
	Joinder rules--can claims and parties be joined?

ANSWER
	Subject matter jurisdiction should be easy to establish in Federal Courts under 1331 (Diversity Jurisdiction.)  No need for supplemental jurisdiction in this case.
	Personal jurisdiction
		Mail alone is not sufficient to establish Personal Jurisdiction (_Hanson v. Denckla_)
		Sands being sued as individual, not as corporation, so essentially need either presence (_Pennoyer v. Neff_, _Burnham_) or Long Arm Statute
		Long arm statute
			Transacts business/contracts anywhere to supply goods or services in state
				Did negotiations with Cohen and Kelly qualify as 'contracted to supply services'?  If so, then yes personal jurisdiction, except over personal injury claim.  Would be difficult to argue personal injury 'arose out of' the act of contracting.
			Commits a tortious act within state--would negligently mailing binder constitute an act 'within the state'?  Could perhaps argue yes.
			Commits tortious act causing injury to person within state--yes, if:
				regularly does business--could argue 1997 and 1998 classes were 'regular', 'persistent', that he did derive substantial revenue
				expects to have consequences in state and 'derives substantial revenue from interstate commerce' -- need more facts on this
			Could make good argument for personal jurisdiction on breach of contract undre long arm statute.  Would have to prove regular/persistent/substantial revenue in order to bring personal injury claim.
	Venue
		Probably Alpine (Northern) or Octon (Southern), would be difficult to argue any of the venue criteria are met for Suffolk (Eastern).
	Joinder
		No Rule 19 joinder (i.e., compulsory)
		Rule 20, permissive joinder
			'in respect of or arising out of the same transaction, occurrence, or series of transactions'
			AND 'any question of law or fact common to all these persons will arise in the action'
		Thus need to prove that this arose out of the Spanish Class they took in Texas
		and question of FACT will be Sands' failure in both cases to follow through
		_Mosley_ -- discrimination suit--although not the same occurrence, same "pattern"
		_Schaeffer_ -- property counts as one minimum contact
		_Burger King_ -- five factors test, balance factors (in personam jurisdiction over *person*)
		_Worldwide Volkswagen_ -- Purposefully avail--did business in '97 and '98.  Property and bank account.

QUESTIONS

	- Do you need $75,000 for *each* claim/plaintiff or total to have diversity jurisdiction under § 1332?
	- What about other potential cruise participants, do they/can they be joined?  Needed to make $12,000?
	- Can you argue about residency under personal jurisdiction?
	- Is there any issue preclusion?
Resuming joinder discussion...

Rule 24: intervention - outside party decides they want to be part of lawsuit.
Rule 23: class actions
  - Buffalo Creek was *not* brought as class action. It was practically in this case to join all members; wouldn't be practical, for example, in case of "all food stamp recipients in Massachusetts." 

Discovery

Under Rule 11, you need to do reasonable inquiry under the circumstances.  For example, if statute of limitations expires tomorrow, you might only do a day's worth of research.  Then, file case.

Rule 8: Possibly truncated complaint.

Then, get everything you can, build case, rebut opponent's case (to win), position yourself for settlement. Want to expedite trial as much as possible--limit facts that you have to take to trial.

In order to expedite trial, go through process of discovery: Rules 26-37.

Rule 26a: mandatory disclosures.

Plaintiff/defendant: use discovery techniques to ask for information. Can ask judge to compel discovery, then to give sanctions.  "Judges hate discovery."  They want parties to work out discovery between each other.  Need to strategically work through when you want judge's help.

Butler v. Rigby
  - Deposition of 2 hospitals, hospital does not want to give information as confidential medical information
  - Magistrate Judges--appointed by district courts, act as assistant judges, all rulings must be affirmed or overruled by judge.
  - In Dispute:
    - total # of patients referred by law firms
    - names of all current patients
  - Protective order--limits discovery
  - Deposition can be used against non-parties (hospitals in this case.)
  - Duces Tecum - demand to hand over documents.
  - Number of patients referred by lawyers to hospitals -- irrelevant and burdensome
  - Names of current patients -- privileged
  - Judge sustains Magistrate Judge's decision to allow number of patients referred but not names of current patients.  This privileged information trumps 26(b)(1).

Rule 12 Motions: End case without going to merit of claims.
Answers: Go to merits, ends in trial or settlement.
Rule 56: Summary Judgment
  - Example: someone applies for food stamps, is refused because car is too valuable, state has regulation that limits eligibility, lower value than federal standard. No questions of facts. Could move for summary judgment to get decision.
  - Houchens v. American Home Assurance Company
    - Insurance company files motion for Summary Judgment, claiming wife did not provide sufficient information as to accidental death. Evidence includes immigration record that husband entered Thailand but never left--document filed.
    - Different from Rule 12(b)(6)--document has already been filed.
    - Had non-binding precedent from previous disappearance cases, suggesting death was accident.
    - Burden is on plaintiff to prove accidental death. If chances of accidental vs. non-accidental death are equal, judgment goes for defendant.
    - Judge cannot 'decide fact'--if evidence is questionable, then case should go to jury.
    - Directed Verdict: 'no reasonable jury could make this decision'.
  - Seventh Amendment (Bill of Rights): Right to a jury.
  - Judge decides questions of law:
    - Evidentiary rules
    - Motions

Norton v. Snapper Power Equipment
  - Judge issued directed verdict on some charges--before jury.
  - Judge can reverse jury verdict--issues judgment notwithstanding the jury.
  - Strict liability claim is stronger than negligence and warranty claims, so issues directed verdicts on these claims, but wanted jury to decide.
  - jnov - judge is not disagreeing with jury, but saying he erred in not issuing a directed verdict earlier.  Can only be done if there has been a motion for directed verdict at beginning.

Claim Preclusion - Res Judicata
Issue Preclusion - Collateral estoppel

Need to have two cases

Rush v. City of Maple Heights
  - Rush v. City -- Property (judgment for plaintiff)
  - Rush v. City -- Personal
    - Wants to use issue of negligence from first case--issue preclusion
    - City wants to use claim preclusion -- need to bring all claims in one suit, no second shot
    - Vasu v. Kohlers says you can have two cases for person and property.  Case was overruled by higher court--now Vasu only applies to insurance cases.
  - Claim Preclusion does not apply to different parties, doesn't matter if it's the same situation or same transaction (i.e., Mr. Rush could sue separately).
  - Party Autonomy vs. Judicial Efficiency.

Appeals
  - Party who lost must appeal
  - Can appeal injunctions (interlocutory orders)
  - 1291, 1292(a), 1292(b)
  - 1292(b) Judge certifies question.
  - Must otherwise be final decision.

Tensions
  - "Truth" v. Advocacy
	- Disclosure v. Withholding
	- Rule 8 v. Rule 11
	- Party Autonomy v. Judicial Efficiency
	- Who has the power?
	  - Rules weigh in
		- Jury/judge
Historical perspective on pleadings

British Common Law - Writs
	- Formalistic
	- Need to pick writs, narrow case to one issue or one fact
	- Writ --> response -> response to response
	- If plaintiff chose wrong writ to start, would lose case, no means to amend
	- Writs bore very little relation to facts, highly formulistic
	- No alternative pleadings, need to go with standard form
		- Local v. Royal Cases --> King's peace
		- Royal Cases look like criminal cases but are filed as civil cases
		- In civil ligitation, you are searching monetary reparations
	- When planitiff chose writ, defendant has very limited responses
		- Demurrer v. Plea
			- Demurrer
				- Something wrong with legal claim itself
				- Looks like Motion to Dismiss--12(b)(6)--failure to state a motion upon which relief can be granted
				- Certain rule 12 motions need to be made in certain ways--12(g)(h) have restrictions
			- Dilatory Plea v. Plea at Bar
			- Dilatory Plea (p. 390 - 1, 2, 3)
				- Rule 12 motion to dismiss on basis on lack of jurisdiction or improper venue, 12(b)1-5,7
			- Plea at bar:
				- Admitting or denying truth of allegations
				- Traverse
					- Denial - 8(b)
				- Confession and Avoidance
					- Affirmative Defense -- Rule 8c
	- Common Law vs. Chancery Court
		- Chancery Court can grant injunction, common law can grant only monetary relief
		- Injunctions were called 'equitable courts' -- equity
		- Need to show you have an inadequate remedy in common law royal court in go to chancery
		- Chancery Court (as opposed to Civil)
			- Testify under oath
			- Join claims/parties
			- No jury
			- Subpoena power--can force parties to testify
			- Written testimony only
			- Pleadings more detailed, less formulaic, more tied to facts of case
			- Need to prove inadequate remedy at law with monetary damages
		-* Under Rule 1: ...all rules of a civil nature, whether cognizable as cases at law or in equity.
			- Not true in all states.  Illinois, for example, has chancery courts for granting injunctions.
		-* Rule 2: one form of action=civil action, covering both money damages and injunctions, getting rid of writs
		-* Rule 8a: Can now pick any plea as response rather than being highly restricted

Code Pleading
	- Move away from formulaic structure, need to plead _facts_.
	- Need to allege every element of Cause of Action.
	- Majority of states now do claim pleading, but majority of people still live in States with Code Pleading (Federal Court uses Claim Pleading)
	- State Courts hate code pleading, but legislatures have not changed system in Illinois, California, New York, etc..
	- Evidentiary facts, ultimate facts, conclusory facts
	- Under Code Pleading, must plead ultimate facts.
		- Evidentiary facts are too specific, conclusory facts are too vague, need to research precedent for what is considered each type of facts.
	- As judges and lawyers dislike system, they are allowing more and more to be held as 'ultimate facts', creeping towards claim pleading.
	- Federal Rules now require only 'short and plain statement', rather than alleging every element of Cause of Action.
	- Code Pleading might weed out some frivolous lawsuits, weighs in for defendant, promotes judicial efficiency, reduces facts in dispute
	- Claim Pleading--allows for discovery, "truth", weighs in on Plaintiff's side, more inclusive, more open.

Buffalo Creek Film
	- What are limits of litigation?
	- Did plaintiffs really benefit from litigation?
	- What are limits of procedure?
	- Could litigation have been better framed to achieve results for plaintiffs?
	- Non-litigation strategies that could have been explored?
	- What do we want procedure to accomplish and how do we measure if it's accomplishing what we want?
	- Problems
		- Coal companies (owned 3/4 of land) wouldn't let people back on their land
		- Eminent domain for highway
		- Random trailer park assignments
	- Could order coal companies to allow people back on their land, to build schools and hospitals
Pleadings continued...

Some states retain code pleading; while this is minority of states it represents a large portion of population. Federal government and many states do claim pleading under Rule 8.

California forms (p. 403) are hybrid between writs and code pleading, check boxes.

People ex rel. Department of Transportation v. Superior Court
	- Demurrer -- no facts disputed, 12(b)(6) - "So what?"
	- Lower court overruled motion for demurrer
	- 1291 final order, 1292 injunctions are appealable, if lower court certifies decision. Ordinarily decision could not be appealed.
	- In California, writ of mandate can be used to appeal specific issue/motion, in this case that forms are non-demurrable.
	- In Code Pleading, need to include 'facts constituting cause of action.'  Need to state 'ultimate' facts (not evidentiary, not conclusory).
	- Statement of facts to constitute cause of action:
		- Department of Transportation negligently designed highway without median barrier.
		- As direct result of design accident occurred.
		- Defendant should have foreseen this since accident wouldn't have happened if there were a barrier.
		- Insufficient barrier/divider
		- allowed head-on collision
		- reasonable risk that collision would happen

Haddle v. Garrison
	- Georgia (claim pleading state)
	- Haddle is suing under Civil Rights Statute of 1871 (under statute 1985).
	- Haddle claims he was fired after testifying before a grand jury concerning medicaid fraud.
	- Case is in Federal Court due to Federal Question (1331)
	- Rule 8(a)(1) need to state Subject Matter jurisdiction
	- Also: supplemental jurisdiction -- pendant (attached) to other jurisdiction.
	- Lower court rules there is no personal or property damage
	- Although Haddle didn't testify, he did attend, which is equally protected.
	- Even if defendant submits note that plaintiff quit rather than was fired, defendant cannot submit 12(b)(6) motion, since 12(b)(6) is based on complaint and is decided on whether a claim for which relief can be given has been stated.
	- Employee is employee-at-will.  Under 1985, needs to be 'injury to person or property': is at-will job property?
		- Under district court, at-will job does not give property right, no constitutional protection. Binding precedent from 11th circuit decision.
		- 11th circuit affirms per curiam.
	  - Supreme court accepts case as there is a split between circuits (wants uniformity).
	- Even if you don't have 'property' that would trigger procedure, you can still say at-will job constitutes 'property' in 1985.
	- Job is property interest for the purposes of 1985, rather than as a constitutional due process right that triggers procedural.
	- 12(b)(6) can go to both inadequate pleading (DOT, above), or inadequate definition of terms (misdefinition of property).
	- Decision based on tort law idea of property

Buffalo Creek Complaint
	- 8(a) 'short and plain statement'
	- 22 page complaint
	- Educate judge, defendant
		- Promote possible settlement
		- Defendant has to answer on every point; if defendant admits some points, lessens discovery time, trial time, etc..
	- Paragraphs 1-2: Alleging diversity jurisdiction, meeting 8(a)(1)
	- 'Cause of Action' pleading--look to practice of court to see best pleading method
	- Paragraph 61: setting stage for injunctive relief.  No adequate remedy at law ('chancery has to give equitable relief because common law damages are insufficient').

Under Rule 8, you have choice of filing complaint like Stern's in Buffalo Creek, or a short and plain statement of complaint.

Business Guides v. Chromatic Communications Enterprises
	- 10/31/86 file case, motion for temporary restraining order (emergency injunction)
	- 11/4/86 clerk calls plaintiff's lawyer, asking to specify which seeds are inaccurate.  Plaintiff retracts 3 seeds.  Clerk discovers on phone in one hour, that 9 of 10 alleged seeds did not contain inaccurate information.
	- 11/7/86 hearing on temporary restraining order, plaintiff files new affadavit, retracting one more.
	- Judge denies Temporary Restraining Order, refers matter to magistrate to see if there is a violation of Rule 11. Court can order Rule 11 even without motion from parties.
	- "standard of conduct under Rule 11 is one of objective reasonableness", court claims that it is clear that rule was violated.

Religious Technology Center v. Gerbode
	- "Safe harbor" provision--21 days notice before rule 11 motion is filed with court.
	- 20 days to answer complaint--need to file answer even if you consider complaint to be frivolous
	- Could file 12(b)(6) motion instead of answer--tolls time to answer

If you waive personal process, 60 days to answer.
Rule 11 sanctions continued...

Religious Technology Center v. Gerbode (p. 427-431)
	- To decide on sanctions, court asks whether sanctions would deter further abuse.
	- Look at history of parties and litigation.
	- P. 428, III.A., look at Advisory Committee's Notes.
		- Rules, Statute 2072--Rules of Procedure and Evidence; Power to Prescribe = Rules Enabling Act
		- 2072a - Gives Authority to Supreme Court to do Federal Rules of Civil Procedure
		- 2072b - Such rules shall not modify substantive rights.
		- No Rule has ever been found to violate 2072b
	- Advisory Committee submits Rules to Standing Committee, which submits to Judiciary Committee, which submits to Supreme Court, then rules are sent to Congress.  If Congress does not act within 7 months, Rules are enacted.  If Supreme Court found a rule to violate 2072, they wouldn't send it to congress.
	- Looking to Advisory Committee Notes is analogous to looking at legislative intent in committee notes, etc.. for interpretting statute.
	- Part of attorneys fee goes to opposing party, rest goes as fee to court, due to 'long and acrimonious history' of litigation.
	- 1991 amendment prohibits holding party liable for 11(b)(2) violation but still can be held liable for violations of other parts of rule.
	- 1993 entire law practice in addition to signing attorney can be help liable

If attorney *later* discovers would have violated 11, cannot 'later advocate' for motion, but does not have to retract or amend.

Tension between Rule 11 and Discovery (and earlier tension between Rule 8 and Rule 11).

Different rule covers sanctions in Discovery.

Olsen v. Pratt & Whitney Aircraft
	- District court rules claim is preempted by ERISA
	- Doctrine of Preemption: certain areas of law covered entirely by Federal Law
	- Appeals Court rules on 9(b) -- complaint was not specific enough -- interpretation of 2nd circuit of 'stated with particularity'.

Why particular requirements on fraud?
	- Could 9(b) violate 2072b?
		- Judge can rule that 2nd circuit has misinterpreted rule 11 in this case and overrule interpretation.

42 USC 1983 permits suit against those who act to violate federal constitutional or statutory rights, acting 'under color of state law'.

Prior to Leatherman, courts required 'heightened pleading' for 1983 claims.

Do 1983 (civil rights) case require something other than Rule 8(a) requirements?
	- Relaxed pleadings would cause expenses to municipality and/or state officers
	- Want state officials to 'do their job', don't want them spending time and worrying about court action
	- Connections already exist between courts and officials, may not want to favor that any further
	- Municipal Liability
	- Official Liability
		- "Officially"
		- Personally
			- Qualified Immunity

	-& Read whole Leatherman lower court opinion, judge wants to indicate that he is bound by 11th circut precedent but does not agree with rule

	- Official capacity - usually trying to change defendant's behavior
	- Personal capacity - going after their pocketbook

Leatherman
	- Defendant Municipality
		- Municipalities are not responsible for their employees
		- This is not a heightened pleading standard, Rule 8(a) is fine, but need to demonstrate that behavior is connected to policy or custom (that it constitutes repeat behavior).  Plaintiff has not articulated elements of claim by not showing that action has occurred over and over
	- Supreme Court Rules that under 9(b) only fraud and mistake claims require particularity. Otherwise, 8(a) applies.
	- In Branch v. Tunnell, Supreme Court has not been specific with respect to individual government officials in terms of heightened pleading.

Gomez v. Toledo
	- Rather than specificity of complaint, case deals with burden of proof
		- Burden of pleading: actual complaint/answer
		- Burden of production: is there enough evidence for case to go to reasonable jury?
		- Burden of persuasion: convincing jury/judge
	- Usually three burdens follow one another.
Burden of pleading usually leads to burden of production and burden of persuasion...

Elements of plaintiff's case (claim pleading): causation, but not contributory negligence. 

How to determine burden:
	- Legislation
	- Legal History
	- Access to Information

1) Persons shall be liable for injuries to others caused by failure to take reasonable care; provided that no person shall be liable if the plaintiff's own negligence was the primary cause of the injury.

2) A person who is not herself negligent but who is injured by the negligence of another, has a cause of action against the injured.

	- First statute requires defendant to raise affirmative defense, whereas second requires plaintiff to prove that she was not negligent.  I.e., burden is on plaintiff in (2), on defendant in (1).

Gomez v. Toledo

	- 1983 -- person acting under 'color of the state', violates federal statute or constitution
	- Police officer fired without hearing, rehired, sues for failure to have hearing (due process)
	- Immunity -- question of who has burden or proving immunity or non-immunity
	- District court rules that the plaintiff has burden of alleging defendant's bad faith
	- Leatherman case dealt with pleading with specificity, Gomez deals with whether you have to plead an element in any form
	- Supreme Court rules that defendant has burden of proving good faith
		- Access/Knowledge of Facts
		- 1983 sets out elements
	- Plaintiff did not allege Bad Faith as this might give him burden of production and burden of persuasion

In criminal case, burden is generally on State.  With Civil Case, the state, rules, etc., allocate burdens, although plaintiff has most of burden.

For all elements of case, need to determine which the plaintiff has burden of pleading, then allege something for each element.  Other than for fraud, you don't have to allege heightened pleading, but do need to plead 'something'--allege negligence, injury, etc..

Burden of Production: by the time you go to fact-finder, you have presented sufficient evidence so that a reasonable jury could find in your favor.

Waiver or Preservation of Certain Defenses
	- Rule 12g and h--if you make a motion under Rule 12 but omit rule 12 defenses available at that time you lose your chance (except those in h2)
	- Once you file a motion, if you don't raise as described 12(h)1, you lose your chance.  If you don't make motion, you can include 12(h)1 in your answer.
	- Subject Matter Jurisdiction -- can be raised at any time, anywhere

Zielinski v. Philadelphia Piers, Inc. (p. 457)


Special appearance--only here to challenge personal jurisdiction--12(b)2--i.e., you don't have authority to have me here.

_Zielinski v. Philadelphia Piers, Inc. (continued)_
139 F. Supp. 408 (E.D. Pa. 1956)

Fork lift owned by PPI, was employed by CCI.

Federal Rules are not inclusive.  Plaintiff makes up motion that PPI owns company of which Zielinski was employee.

Example of 'motion to advise judge on the status of the case'.

Defendant filed answer with General Denial.

Sandy Johnson deposition, under oath, says "I am employee of PPI" in presence of PPI lawyer, does not correct Sandy Johnson's testimony.  Also, in deposition, defendant represents that brief investigation was turned over to company's insurance company, saying that they were not employer.

No technical violation of Rule 11
	- PPI signed document saying they didn't own company, which was true.
	- Under 8(b), need to deny 'in good faith' and 'fairly meet substance of the averments denied'.
	- Defendant did not fairly meet substance of the averments denied--appeared to deny negligence

Even though there was not a technical violation of Court 8(b), the denial is still deceptive, and it is too late to sue CCI (Statute of Limitations), so Court decides to accept PPI as employer as truth (even though it's false).

But--insurance company is same for CCI and PPI and knew about case.  This fact cannot go before jury--fact has been decided as 'a matter of law'.

Questions on P. 463
	- 5a) need to affirm even if it is 'impossible' to prove, under 11(b).
	- 5b) can deny under 11(b)4.  Likewise with 5c).

_Layman v. Southwestern Bell Telephone Co._
554 S.W. 2d 477 (Mo. Ct. App. 1977)

Rule 8(c): Affirmative Defense
	- Result of denial and affirmative defense both make defendant not liable to plaintiff, neither is to 'benefit' defendant.  Denial rejects plaintiff's case/facts, affirmative defense="yes, but..."

Most cases do little or no discovery as discovery is expensive; thus plaintiff's ignorance of easement is not incompetence.

Rule 8--'notice pleading'
	- Each element of rule 8 to prepare other party, 8(c)--if you have an affirmative defense, it should be raised in pleading.

Rule 55.08 (p. 465) in Missouri similar to 8(c).  8(c) specifies license as affirmative defense, plaintiff will argue that easement is similar to license, but defendant could argue that rule would have included easement if they wanted it.

	-* Absence of word can be used to say rule drafters didn't intend for word to be included, or to say it's similar to something included

Can you do a denial and an affirmative defense?
	- Can't deny something that you admit in affirmative defense, "I wasn't there, but if I were, I wasn't negligent".
	- Can say: "I didn't hit you, you hit me, and even if I hit you, you were also negligent."

Rule 7(a) -- no response to answer (denial/affirmative defense) unless ordered by court

_Beeck v. Aquaslide 'N' Dive Corp. P. 471_
562 F.2d 537 (8th Cir. 1977)

Defendant's amendment to answer--defendant wants to amend what they admitted (that they manufactured water slide) to a denial

One year later president of company goes to see slide, realizes it is not their slide, moves to amend to deny. Statute of limitations is expired.

Is this a 'reasonable inquiry under the circumstances'? Would this be a Rule 11 sanction?
	- Sanction could be refuse to allow defendant to amend

Rule 15(a) allows amendment 'when justice requires'.

15(c) Relation Back--amend complaint going back to original complaint.

_Moore v. Baker (p. 477)_
989 F.2d 1129 (11th Cir. 1993)

	- Court denies motion to amend back to original complaint
	- Plaintiff wants to add malpractice to lack on informed consent complaint
	- Facts are not the same for amended complaint and original complaint.
	- Court contrasts Azarbal v. Medical Center of Delaware where malpractice was amended to include lack of informed consent; thus court reasons lack of informed consent might fit into malpractice more than the reverse.

_Bonerb v. Richard J. Caron Foundation (P. 479)_
159 F.R.D. 16 (W.D.N.Y. 1994)

...can bring in CCI in Zielinksi but not real manufacturer in Beeck due to limit in 4(m) referenced in 15(c)3.  Real party needs to have been served notice within 120 days of claim.
Subject Matter Jurisdiction, Personal Jurisdiction, Venue, Joinder are four different pieces you have to look at as a package in determining whom to sue and where to sue

28 USC 1367: Supplemental Subject Matter Jurisdiction

Joinder of Claims

Affirmative Defense -- Fraudulent misrepresentation is an affirmative defense, gets defendant off the hook but no damages; counterclaim could get damages for defendant.

Compulsory Counterclaims -- need to raise counterclaim in same complaint or you lose opportunity.  Needs to arise out of same transaction or occurrence.

Need to have subject matter jurisdiction for every claim in case; if there is compulsory counterclaim supplemental subject matter jurisdiction (1367) can come into play; if counterclaim is permisive, then you need another basis for subject matter jurisdiction.

Truth in Lending Act -- violator is liable for three times finance charge.

_Plant v. Blazer Financial Services_ (895)
	- Plaintiff is suing under federal law (Truth in lending act), thus subject matter jurisdiction lies in federal court
	- Defendant has counterclaim for unpaid balance.  If this lies in the same transaction then this becomes compulsory counterclaims, and you get supplemental jurisdiction, and counterclaim can be brought in federal court.  Otherwise, you need some other basis for subject matter jurisdiction.  In this case, no other basis, so if court rules this is not the same transaction, then defendant cannot make counterclaim.
	- Four criteria (p. 896) for evaluating whether claim and counterclaim arise from the same transaction
	- Court decides loan as same transaction gives ride to both claims
	- If court rules outstanding debts to be compulsory counterlaims then it effectively eliminates lawsuits from low-income population with high default rate as balance owed will be more than triple damages on finance charges.

Joinder of Parties

Rule 20 -- same transaction occurrence or series of transactions or occurrences, and question of law or fact common to all parties

_Mosley v. General Motors Corp._ (p. 904)

	- Frequently, one party will file motion with judge to have question certified by higher court, making argument under 1292 (interlocutory decisions, p. 303 of FRCP).
	- Lower court rules to split 10 plaintiffs into 10 different cases.  Appelate court reverses lower court's decision, rules plaintiffs can stay together as it arises out of the same discrimination in the company.
	- Appeals court is making a substantive determination in that they believe there is a policy that unites 10 plaintiffs--under the guise of determining permissive joinder under rule 20, court is weighing in on the side of a discriminatory policy.
	- Use Rule 13(a) compulsory counterclaims to determine 'same transaction and occurrence' for Rule 20.

_Watergate Landmark Condominium Unit Owner's Association v. Wiss, Janey, Elstner Associates_ (p. 911)

	- Real Estate Firm (Wiss, Janey, Eltner) files a cross-claim against the engineering firm, and third-party claim against construction firm (Brisk Waterproofing Company).
	- Real Estate Firm files 3rd party impleader under Rule 14 against Brisk.
	- RE becomes third-party plaintiff against Brisk as third-party defendant
	- Derivative Liability -- if real estate firm is found liable then third-party defendant (Brisk) has to pay third-party plaintiff
	- Countervailing priority of 'plaintiff autonomy' vs. 'judicial efficiency'--plaintiff wants to be able to choose defendants
	- Limited circumstances for when plaintiff can't chose defendants are Rule 14 and 19.
	- Engineering firm cannot bring in Brisk because case is *not* derivative liability.  In derivative liability, defendant claims "if me, then him", otherwise, defendant needs to make denial: "him, *not* me".
	- If Condo assocation had sued construction firm, construction firm could bring in engineering firm as third-party defendant, claiming they were just following the engineering firm's instructions, thus this is derivative liability.
	- Condo Association could be maximizing return by suing real estate and engineering firms and then (whether they win or lose) suing Brisk.
	- Unless there is contractual agreement between Real Estate firm and Construction firm, they can't sue for damages.

Doctrine of Joint Tortfeasors
	- Some states hold that if two people do something wrong in the same incident even with no contractual arrangement between them, there can be liability between them ("me and you")
	- State statute creates 'joint liability', form of derivative liability

_Helzberg's Diamond Shops v. Valley West Des Moines Shopping Center_ (p. 930)
	- Store seeking preliminary injunction to prevent Lord and Taylor from opening
	- Mall responds that plaintiff fails to join an indispensible party (12(b)7--failure to join under 19).  Rule 19 tells you when and how you join the party; 12(b)7 is how you throw case out.
	- Rule 19(a)
		- Complete relief cannot be given without that person ... or
		- Person has such an interest and disposition may impair or impede person's ability...
	- Rule 19 is not just bringing in anybody that you think has something interesting--very high standard
	- If person cannot be joined because of personal or subject matter jurisdiction, then need to determine if person is indispensible--go to 19(b)
	- Is Lord's so indispensible that we have to dismiss action?
	- If not, court continues case in absence of party
	- First, 19(a) -- do we want this party, then 19(b) -- do we need this party?
_Helzberg's Diamond Shops v. Valley West Des Moines Shopping Center_ (p. 430)

Mall could have inconsistent obligations in two separate cases if Helzberg and Lord's both win.  Thus 19(a) is met.  Cannot join Lord's as subject matter jurisdiction would be lost, go to 19(b), is it an indispensable party?

19(b) gives criteria for determining if party if indispensable.

Need to weigh all factors to determine whether to dismiss suit or not.

Since 12(b)(7) was appealed on the basis of 28 U.S.C. 1292(a)(1) there was a preliminary injunction.  1291 - final decisions, 1292(a)(1) appeal on injunctions, 1292(b) certified by judge.

_Permissive Joinder Problems_

1.a. Yes, Rule 20(a) -- same transaction/occurrence, *and* similar questions of law or fact
b. Yes, Rule 20(a) -- same transaction, same question of law or fact (question of law)
c. Yes, rule 20(a), 2nd sentence, permissive joinder of defendants
d. Yes (probably), Rule 20(a), common issue of fact (if not common issue of law)
e. Yes, 20(a) -- "in the alternative", permissive defendant joinder, under Rule 11 you believe you will discover liable party with discover.
f. Could implead Hackney and Williams under 14a or 19 compulsory joinder, but probably could not make either motion as they are not derivatively liable nor are they indispensable.

2. Yes, under 18(a)--joinder of claims--may join as many claims as party has against opposing party.

3. Yes, *any* question of law or fact common to all defendants is okay, under 20(a) 2nd sentence. Under 18(a) you can add as many claims as you like against any opposing party.

4. Yes, 18(a) -- *may* join.

_Counterclaim Problems_

1. Yes, Rule 13(a) -- same transaction and occurrence, probably.

2. Yes, Rule 13(b) -- may state counterclaim *not* arising out of the transaction.  Need to have independent subject matter basis.

3. Yes, 13(b) again.

4. 13(h) -- joinder of additional parties.  Not 14(a), where Maze-Rothstein would be responsible to Woo in the case where Maze-Rothstein is found liable.  13(h) with respect to Rules 19 and 20 (compulsory or permissive).

	-* Defendant can only bring in additional parties under 14 or 19 unless there is a counterclaim against the plaintiff in which case parties can be brought in under 13h (and 19 or 20)

_Cross-claim Problems_

1. a. 13(g) like a rule (14) except it's a cross-claim--can bring another claim against another defendant (or plaintiff).  Can be made if other party is liable for all or part of the original claim.
	b. Not a counterclaim because both parties are defendants.

2. Yes, 13(g), still same transaction or occurrence.

3. No, 13(g), not the same transaction or occurrence.

4. Yes, 13(g) and then 18(a) as parties (defendants) then become opposing parties.

5. Yes, 13(a) compulsory counterclaim.

6. No, no diversity anymore.

_Pleaders and Impleaders_

1. If state has joint tortfeasors, Baumann can implead Enrich, since both would be responsibility.  Otherwise, not--'we both did something wrong'.

2. No, 'him not me', not impleader (not derivative liability).

3. Yes, because subcontractor is responsible to general contractor as a matter of substantive state law.  Abrams is responsible to Brodin as general contractor.

4. Yes, Rule 14 and 11. "Who is or may be liable." (Rule 14(a)).

	-& Will do next two cases tomorrow and finish questions
Next week--meet four times.
2 weeks--1 class.
3/4 -- regular
5 weeks -- no meeting 29th October.
Class on 2nd November 11:45am-1:15pm.

Joinder questions continued...

5. Separate transaction/occurrence and no derivative liability, cannot implead under 14(a).

6. Appropriate 14(a) implead under subcontractor relationship (derivative liability), then 18(a) is triggered and any claim against opposing party can be brought.

7. Not crossclaim or counterclaim, but allowed claim under rule 14(a) sentence 6.

8. Not opposing parties.

9. 1-Woo can counterclaim against Abrams with 13(a) or 13(b) (compulsory or permissive counterclaim).
	2-Abrams could counterclaim against Brodin, same rule.
	3-Woo could do a 14(a) sentence 6 claim against Brodin, then Brodin could do a counterclaim against Woo under 13.

10. Yes, rule 14(a) sentence 9 allows third-party defendant to bring another third-party defendant.

11. No, because Woo and Brodin are not opposing parties under 13(a) or (b).  In same transaction or occurrence, plaintiff could assert a claim against 3rd party defendant.

12. Yes, under 14(b). Gives plaintiff sames right as defendant in impleading.

13. No, rules do not give any mechanism for this.

_Intervention_: when someone outside of lawsuit wants to participate in some way.

Rule 24 motion -- party who has strong enough interest that they want to be part of lawsuit.

_National Resources Defense Council v. United States Nuclear Regulatory Commission_ (p. 940)
10th Cir. 1978

NRDC wants to be included in decision between agencies that are licensing uranium mines until they prepare Environmental Impact Statements.  Wants injunctive relief.

Several parties want to intervene:
	- United Nuclear
	- Kerr-McGee
	- Trade Association (American Mining Congress)

Who can intervene under Rule 14?
	- UN can intervene; neither party (NRDC or USNRC) objects
	- 24(a) compulsory intervention: 24(a)(1) can intervene if statute says so, 24(a)(2) applicant has interest in property/transaction that would be impaired and is not already adequately represented.
	- UN has license pending (tentatively approved at time of trial), would be stopped by injunction.
	- Agency's interest is in process of licensing, UN has interest in maintaining license and mining uranium as soon as possible.
	- Kerr-McGee's licenses will be up for review in near future; one of largest holders of uranium properties, significant interest.
	- UNC might settle on past licenses without regard to future interests which Kerr-McGee will have.
	- Appellate court rules 24(a) intervention as of right was met, so they don't have to rule on 24(b) permissive intervention.
	- If Kerr-McGee had sued NRC, unlikely NRDC could intervene (same problem as Allard).

What is meaning of 'interest', 'substantial interest'?

	- Empty boxes to be filled by judicial system & lawyers.  This is only thing that gives meaning to 24(a)(2).

_Martin v. Wilks_ (p. 948)
	- Black fire fighters (on behalf of class) and NAACP sue fire department (City and Personnel Board)
	- Come up with 2 consent decrees -- rule 23(e) requires notice of dismissal/compromise to all members of the class in such manner as court directs
	- Court holds 'fairness hearing' on consent decrees.  White fire fighters move to intervene under Rule 24.
	- Members of BFA sue City and Personnel Board -- same defendants, white plaintiffs
	- Want to get injunction to not enforce consent decrees
	- Original plantiffs move to intervene claiming interest in original decrees, allowed to intervene under rule 24(a).
	- Black fire fighters can assert issue and claim preclusion--consent decrees are enforceable as preclusions.  Claim issue is 'already litigated'. White fire fighters say they were not parties to earlier decision--cannot be bound by litigation to which they weren't part, regardless of whether they tried to intervene.
	- Court said there was no burden to intervene; plaintiff has burden of bringing all parties into case. Requires 'everyone' eventually to be brought in by plaintif, does not seem to be reasonable burden.
	- After case, congress passed statute prohibiting collateral challenge to a consent decree in a civil rights employment discrimination case if challenger had actual notice and opportunity to present objections or interests were adequately represented.

_Class Actions_ (p. 962)
	- Permits one or more parties to sue or be sued as representatives of people who are 'like them'
	- Allows unorganized or unincorporated group to be represented
	- Rule 23(a): Numerousity, commonality, typicality, adequacy of representation
	- 23(b) 1 or 2 usually for injunctive relief, 3 for monetary relief
	
_Communities for Equity v. Michigan High School Athletic Association_ (p. 969)
WD Mich 1999
	- Title IX claim on behalf of female athletes
	- Broad-based relief, future/prospective relief
	- When athletes graduated, case would become moot if it were not a class action--might never be decided with named plaintiffs.
	- Typicality problematic claim: example of Alston v. Virginia High School League; female athletes don't necessarily generally want things to change, thus plaintiffs were not typical of class.
	- Although there are many different claims in class, there is no schism like in Alston--thus they allow plaintiffs to be 'typical', varying claims could add up to pattern of discrimination.  Looks like _Mosley_ decision involving question of whether ten employees could be joined together.
	- Might be able to break down class into sub-classes if problem emerges.
	- p. 969 -- class defined
	- p. 973 -- Rule 23(b)(2) -- defendants claim class in unnecessary because injunctive relief would help everyone; but this is not requirement for 23(b)(2).
	- Split in circuits on 23(b)(2) issue--not done in 6th circuit.
Class actions continued...

_Heaven v. Trust Company Bank_ p. 977
11th Circuit 1997

23 -- all 4(a), one(b) -- Heaven b(3) -- gets money b(1)-(2) not money

Plaintiff brings regulatory action against defendant, defendant brings counterclaim.  Court has ruled that debt counterclaims are compulsory in Plant v. Blazer Financial.  13(b)3 -- common questions predominate over questions involving individuals.

Lower court rules that Class Action is not superior to individual actions as some of members of class would end up worse off as Class Action due to unpaid debts.  Also not manageable.

Rules enabling act allows Class Action certification to be appealed by Rule as it can effectively be a 'final order' in reality although formally it is not. 1291-1292, 2072, 23(f).

Contrast with _Ballard v. Equifax Check Servs._.

_Hansberry v. Lee_ p. 982
1940

	- Lee is trying to enforce racially restrictive covenant
	- Hansberry responds covenant is not in effect as it had not be signed by enough residents
	- Lee claims issue preclusion--already decided in prior class action
	- Class action was brought by white plaintiffs suing white defendants, defendants claim they might want to sell their home to black owners, plantiffs say there is a racially restrictive covenant, defendants agree.  Thus trial existed to set precedence on racial covenant.
	- Question is, when is someone bound by class action when they didn't know?  Is Mr. Hansberry bound by class from first action?
	- Normal rule is, yes, you are bound to class action.
	- But Hansberry was not adequately represented by class (rule 23(a)). 

_Quiz_

	- Question III
		- Need 8(a) short and plain statement, 10 - Caption ("Eakins v. Pittston"), Rule 11

_Practice Quiz Continued..._

III.A.

8(a), 10, 11

	(1) Elements -- claim pleading
	(2) Burden
	(3) Specificity -- 9
		- Heightened Pleading Requirement -- no heightened pleading post Leatherman
		- 18, 20 - 1983

III.B.

Representing Pittston

	- 8(b): deny or admit the answer, rule specificity of answer, consistent with 11(b)4
  - 8(c): affirmative defenses
	- 12: pre-answer motions
	- 13(a): compulsory counterclaims
	- 13(b): permissive counterclaims
	- 13(g): cross claims
	- 13(h): add parties
	- 14: derivative liability and other responsive claims
	- 18: permissive claim joinder
	- 19: compulsory party joinder (19(a) - party to be joined if feasible)
	- 20: permissive party joinder
	- 23: class actions
	- 24: intervention

On behalf of Pittston:
	- Case in chief is Eakins v. Pittston
	- Counterclaim of slander
		- If permissive, could be filed as a separate claim later, but not if compulsory
		- Need to establish whether slander arises out of same transaction or occurrence
		- Might be able to add another party if Eakins had slandered with someone else, but no evidence that this happened
	- Derivative liability
		- Could bring in State Environmental Agency
		- Buffalo Mining Company (if joint tortfeasors are liable to one another)
		- Insurance Company
		- Employees
	- Third party defendant can bring claims back against original plaintiff
	- Interventions:
		- Sister of Eakins might want to intervene as plaintiff

	- Individual is not bound if not party to action.
	- Individual does not have to take initiative it intervene.
	- Party's responsibility to join anyone they want bound.
	- If party brings case as class action, members of class are parties under rule 23, and are bound unless there is inadequate representation.
	- Rule 24 intervention: shareholders, other mining companies, other government agencies

Above--exploration of joinder rules--"1/4th of what you do in real life"--need to also look at subject matter jurisdiction, venue, personal jurisdiction (?).

_Relief_

Compensatory Damages

_United States v. Hatahley_ p. 315

	- Case between Navajo tribe and federal government
	- First, government sues Navajos for injunctive relief so Navajos don't rise livestock on federal land
	- Meanwhile, government sends animals to glue factory.  Would be tort if party were not government.
		- Frequently, claim against government is failure to give notice (no tort possible)
		-* Case where procedure and substance are the same--procedural due process is problem
	- Navajos are entitled to damages due to failure to give notice
	- Case concerns how to compute damages
	- Within tribal community, can exchange animals; court says damages must be determined by market value.
		- Would want to calculate cost of replacing animal and cost of training animal
		- Can also look at consequential loss--what is result of not having animal for given period of time
			- Prudent Person Mitigation--need to replace loss within reasonable time ('prudent person')
			- Not clear what constitutes prudent person.
	- 'Fundamental principle of damages is to restore person to position he would have been in had it not been for actions of other party.'

Punitive Damages

	- To punish other party, deter them from doing action again
	- Supreme Court has dealt extensively over last 25 years in split decisions (5-4):
		- Punitive Damages
		- Personal Jurisdiction
		- With respect to Civil Procedure
	- B-F: Procedural Due Process limits damages
	- Haslip: what are procedural protections when court is considering punitive damages?
		- Wealth of defendant excluded
		- Jury instructions carefully tailored to talk about purpose of punitive damages.
		- Trial court can reduce damages awarded.
		- Appellate court can reduce damages awarded.

_Honda v. Oberg_ P. 323
1994

	- Oregon state constitution amended to prohibit judicial review of punitive damages unless the court claimed there was absolutely no evidence to support the award
	- Limitations
		- Jury could not award higher punitive damages than complaint
		- Standard of proof (clear and convincing evidence)
		- Jury instructions consistent with Haslip as to purpose of punitive damages.
	- Supreme Court rules this amendment is inconsistent with 14th amendment to US constitution.
	- Two justices joining in dissent (Ginsburg and Rehnquist):
		- Federal government should stay out of state business
		- Nullification is consistent with procedural due process.

_BMW v. Gore_ P. 326
1996

	- Previously court has been concerned primarily with procedure, not dollar amount
	- Court rules $2M punitive award is excessive, violates due process.
	- Alabama courts are imposing punitive damages outside of Alabama.  Although you can bring nationwide class actions, different with punitive damages, cannot infringe on other state's interests.
	- Grossly Excessive (criteria for determining)
		- Reprehensibility
		- Ratio between compensatory damages and punitive damages
		- Relationship between punitive damages / civil penalty

Many close supreme court decisions--unstable area of law.

Specific Relief p. 332

	- Replace the thing lost, rather than money (looks like injunctive relief)
	- 7th amendment: if remedies were 'common law remedies', right to jury trial, otherwise judge will order relief

_Sigma Chemical Co. V. Harris_ p. 334
E.D. Mo. 1985

	- When judge is fact-finder, judge must make ruling as to findings of fact and conclusions of law
	- Burdens
		- With jury, judge decides whether party has met burden of production, then jury decides burden of persuasion
		- Without jury, judge decides that party has met burden of production *and* persuasion

Specific performance...

_Sigma Chemical Co. v. Harris_ (p. 334) continued...
605 F. Supp. 1253 (E.D. Mo. 1985)

	- Plaintiff seeks permanent injunction to stop defendant from working for competitor.
	- Criteria for deciding on injunction
		- Balance hardship of plaintiff and defendant
		- No adequate remedy at law ($)
		- (irreparable injury can fit into both categories)
	- Alternative would be money damages

_Declaratory Judgment_ (p. 338)

	- Confusing, because plaintiff and defendant are reversed--plaintiff is seeking ruling that what he will do is not illegal
	- Article III of US Constitution: in order to have federal court jurisdiction need to have case or controversy
	- If you can't find plaintiff and defendant, case is 'not ripe', cannot be tried.
	- Not always true in state courts--can sometimes get advisory opinions, Federal Courts can only give statements of law.

_Attorney's Fees_ (p. 340)

	- Contingency fee: attorney gets percentage of damages if they win
		- Risky
		- Only works for cases with large damages
		- Winning cases pay for losing cases
		- Potential conflict between lawyer and client
	- Flat rate: client pays their own attorney's fees.  "American Rule."
		- If you have no money or little money, you won't litigate.
		- Can bring difficult case, knowing you're not responsible for other side's attorney's fees, such as Brown v. Board of Education
		- Can't get the best representation without money
	- Fee Shifting (p. 351)
		- Common fund: when suit is brought representing a class, fees are shared by those who benefit.
		- Contract: leases for apartments often include stipulation that if landlord has to evict, tenant pays legal fees for eviction.
	- Statute (p. 353)
		- Could be awarded attorney's fees in suits that serve a public interest (California), for example
		- 42 USC 1988: fees awarded in Civil Rights suits.  e.g., 1983 (statute that allows you to sue under Civil Rights Statute, Title IX for example, if you are suing state actor or state action violating federal law) action triggers 1988.
		- Interpreted to mean only prevailing plaintiff gets fees
	- Rule 68 (p. 355)
		- If settlement is offered more than 10 days before trial begins (either plaintiff or defendant), and settlement is rejected, but final judgment is less than offer, party rejecting settlement must pay accrued post-offer costs.
		- Encourages settlement -- weighs in on side of judicial efficiency and defendant.
	- Rule 54(d) (p. 129)
		- Except where express provision is made in statute or rules, costs other than attorneys fees shall be allowed to prevailing party.

	- Case where award is less than proposed settlement
	- Plaintiff
										Pre-offer												Post-offer
	Attorney's Fees		American Rule (plaintiff pays)	Same
	Costs							Defendant Pays (54(d))					Plaintiff pays post-offer costs
	
	- Defendant
										Pre-offer												Post-offer
	Attorney's Fees		American Rule (defendant pays)	Same
	Costs							Defendant pays 									Plaintiff	(Rule 68)

	- Under 42 USC 1988, attorney's fees go to prevailing party if plaintiff. Then costs include attorney's fee.  Thus pre-offer, defendant pays attorney's fees and costs.  Post-offer defendant still pays own attorney's fees because 1988 only shifts fees from plaintiffs to defendants, not both ways, so under Rule 68 attorney's fees are only transferred one way.   

_Evans v. Jeff D._ (p. 358)
475 U.S. 717 (1986)

	- Defendant offers settlement without attorney's fees.
	- Lawyer is not supposed to allow his own interest, monetary or otherwise, to interfere with judgment.

_William Inglis & Sons Baking Co. v. ITT Continental Baking Co._ (p. 364)
526 F.2d 86 (9th Cir. 1976)
	- Criteria for preliminary injunction
		- Irreperable Injury
		- Likelihood of success on merits
		- Balancing of hardship
		- Public interest
	- Difference between Irreperable Injury and "No Adequate Remedy at Law"
		- Very similar but for 'point in time' when you're seeking injunction.
		- Irreperable Injury: "Money won't be able to remediate, but is preventable."
	- Preliminary injunctions are usually used to maintain status quo during lawsuit or to order temporary change to make sure the plaintiff isn't harmed during lawsuit.
	- _Charlie's Girls_ case--as potential injury increases, necessary probability of success goes down.

_Fuentes v. Shevin_ (p. 369)
407 U.S. 67 (1972)
	- Don't always need hearing; could just have opportunity for hearing.
	- 14th amendment:
		- State action
		- Individual
		- (life, liberty), property right
		- Not without due process of law
		- Not limited to citizens
	- Factors to weigh on both sides as to advantages and disadvantages of due process
	- Possessory interest is sufficient property right to trigger procedural due process.
	-* Due process has no fixed interpretation

_Mitchell v. W.T. Grant Co._ (p. 379)
416 U.S. 600 (1974)
	- Requirement for detailed affidavit, review by judge, immediate post-seizure hearing, procedure for damage and bonding; no pre-hearing; yet due process is sufficient according to supreme court.

_North Georgia Finishing Inc. v. Di-Chem, Inc._ (p. 379)
419 U.S. 601 (1975)
	- No detailed affidavit, clerk signed, immediate post-seizure hearing, not sufficient due process.

_Connecticut v. Doehr_ (p. 379)
501 U.S. 1 (1991)
	- No pre-seizure hearing, no bond
	- Judge and detailed affidavit, court ruled not sufficient due proces.

Specific relief continued...

_Temporary Restraining Order_

Rule 65(b) -- TRO may be granted without hearing.
	- Granted by judge, hearing after-the-fact (within 10 days), can be extended for 10 days
	- Typically, file TRO when you file complaint, then move for preliminary injunction (which does need to have prior notice under rules).
		- Need specific facts in affidavit
		- Attorney certifies in writing that they tried to give notice

_Discovery_

Informal and Formal Discovery
	- Informal
		- Government documents, conversations, etc., nothing to do with Federal Rules of Civil Procedure--must be done to be consistent with Rule 11.
	- Formal
		- How do you use discovery tools?
			- Mandatory disclosures (Rule 26(a))
			- Party's discovery (some ways to get information from non-party)
			- Show good cause to court--why court should allow you to get documents not allowed by rules
		- What changed in new discovery rules:
			- Seven hours in deposition.
			- Scope for mandatory disclosures.
			- Scope for discovery, in general.
		- Discovery Plan
			- Claims
				- Negligence (e.g.)
			- Next to each claim, list elements of claim
			- How to prove each element--what facts?
			- How to get/where is located each fact?
			- Evidentiary Questions/Problems relating to getting fact into evidence in trial
			- E.G.:
				- Negligence
				- Breach
				- Plans for dam, inspection reports, supervisor in building dam
				- Pittston--request to produce unless documents are part of Rule 26(a) mandatory disclosures that you get at beginning.  Supervisor--might need to do deposition if supervisor is not friendly.
		- What information is discoverable?
	
_Blank v. Sullivan & Cromwell_ (p. 487)
16 Fair Empl. Prac. Cas. (BNA) 87 (S.D.N.Y. 1976)
	- Appealing magistrate's decision to not allow certain discovery
	- Judge affirmed magistrate's ruling against discoverable
	- Plaintiff files for rehearing or reconsideration; device allowed if you can convince judge to change decision
	- Court allows discovery of promotion information as it might be relevant
	- Recent amendments to discovery rules narrows scope of discovery to information supporting 'claims or defenses' (not just 'subject matter').

_Steffan v. Cheney_ (p. 489)
920 F.2d 74 (D.C. Cir. 1990)
	- Steffan is refusing to answer under deposition question, to testify whether or not he had engaged in homosexual acts.
	- Party asking deposition question moved to compel answer, when defendant continued to refuse, plaintiff moved for sanctions under Rule 37(b)(2). Court gave sanction that case would be dismissed.
	- Navy believes information is relevant because it impacts his eligibility to be in Navy. But--substantive underlying law (administrative law doctrine) says you must deal with reason for decision; i.e., was Navy decision correct?  If Navy decision to dismiss based on admitting homosexuality, that basis for decision must be proved wrong, not other issues.

_Questions_ (p. 491 or p. 384 in supplement)
	- Mandatory disclosure: have to give information that disclosing party will use to support their claim.  Don't have to give 'damaging' information under Rule 26(a).
	- Until recently, there was no mandatory disclosure; everything was 'party-driven'.
	- Mandatory disclosure helps 'level playing field', as do limited scope.
	- Rule 16(b) Scheduling Conference
		- Has to be scheduled within 90 days of defendant appearing, and within 120 days of defendant being served
		- Disclosures must be made within 14 days 26(f) conference.
		- 26(f) is discovery conference as soon as practicable but at least 21 days before 16(b) scheduling conference
		- Mandatory Disclosures will have happened at least a week before scheduling conference
	- P. 389-390 supplement, Cora suing manufacturer:
		- 33(a), store is not a party, thus they don't have to answer.
		- Could depose store under Rule 30(a)(1)
		- Manufacturer, under rule 33(a)--too many interrogatories, cannot compel Manufacturer to respond, unless you go to Court.
		- 30(b)(6) -- different kind of deposition, where you don't know who to depose.
		- Once something is 'admitted', need no further evidence to prove, but cannot be used in another lawsuit.
_Discovery and Privacy_

_Stalnaker v. Kmart Corp._ p. 508
71 Fair Empl. Prac. Cas. (BNA) 705 (D. Kan. 1996)
	- Plaintiff alleges sexual harrassment, wants to depose employees concerning their sexual relationships
	- Magistration decisions
	- Defendant claims that information is irrelevant, embarrassing, and humiliating
	- Plaintiff wants to show pattern of behavior at KMart--wants to show that KMart has a 'hands-off' pattern with respect to sexual relationships in general, thus wants to compel testimony concerning voluntary relations.
	- Court decides that voluntary relations are irrelevant but other testimony is allowable.
Involuntary relations are embarrassing but relevant, so they can be discovered but not disclosed outside of lawsuit.
	- Need to determine:
		- Relevance
		- Privilege
		- Embarrassing/humiliating
	- Rule 412 concerns 'whether Plaintiff slept around', cannot be used against plaintiff.

_Abortion Problem_ P. 512

_Schlagenhauf v. Holder_ p. 516
379 U.S. 104 (1964)
	- Original plaintiff are injured passengers, suing driver (Schlagenhauf), company, owner of tractor, driver of tractor, owner of trailer.
	- Greyhound cross-claims against Contract Carriers and National Lead. Contract Carriers allege that bus driver was not capable of driving the bus.
	- Contract Carriers and National Lead petition for mental/physical exam of bus driver--Rule 35 Motion to submit Schlagenhauf to examination, gives nine possible doctors, Court sends driver to all nine.
	- Appeal by writ of mandamus, in which party sues judge for action taken by judge (Holder).  Court of appeals denied writ of mandamus, Supreme Court granted cert because it was an important question.
	- Schlagenhauf claims that application of Rule 35 to him would modify his substantive rights, violating the Rules Enabling Act §2072.
	- Precedent (Sibbach) states that Rule 35 does not violate §2072.  Schlagenhauf argues that plaintiff chose to sue, defendant had no choice, thus Sibbach should not apply to him, claiming plaintiff 'waives' right.
	- Rule 35 does not specify plaintiff or defendant, nor does it say parties need to be opposing parties.  Does *not* apply to non-parties.
	- Matter must be in controversy and must be good cause for Rule 35 motion.
	- Almost like heightened pleading requirement--to meet the test for being in controversy for purposes of a Rule 35 order.  would have needed to allege specific basis for different examinations.
	- Tension between 8(a) and 35--if you intend to put a matter in controversy in specific way in order to discover it, need to allege it somewhere.
	- Black argues that matter was in dispute, Douglas discusses privacy issue.
	- Court is essentially interpretting "in controversy" language in Rule 35 as "with specificity" although this may not be consistent with the _Leatherman_ decision--when rules want to state heightened pleading requirement, they do.
	-* Somehow, defendant needs to be on notice, with specificity, of possible discovery.

_Hickman v. Taylor_ p. 525
329 U.S. 495 (1947)
	- Plaintiffs file 39 interrogatories including 'attach documents', should be (today) request to produce for documents, not interrogatory.
	- Defendants object.  Court orders to compel.  Defendants refuse, court puts defendants in jail.
	- Trying to get written statements of witnesses, Fortenbaugh's notes of interviews with witnesses, and Fortenbaugh's oral recollection of interviews.
	-& Resume here.
	- Computer game:
		- http://lessons.cali.org/catalog.html
		- civil procedure
		- Buffalo Creek II: A Game of Discovery (Initial Disclosure Version).
		- Print out last page, write down scores and names, stick under Lucy's door
		- By next Tuesday
		- Password learnthelaw

_Hickman v. Taylor_ (p. 525) cont'd...
329 U.S. 495 (1947)
	- Wants to know other lawyer's arguments, is attempting to discover notes of interviews with witnesses, written statements of witnesses (actually drafted by lawyer), and lawyer's oral recollection of interviews.
	- Discovery denied because plaintiff can talk to witnesses himself
	- "Work product" -- judicially created exception to the discovery rule
	- When could work product be discoverable:
		- When this is the only way it can be obtained
		- Must be 'essential, necessary' information
		- Written statements of witnesses
			- No attempt made to explain why these documents should be forced to produce--thus work product rule is not overcome
		- As for oral statements to lawyer in form of written memo or recollections, no showing of necessity can be made.  What is contained in these documents is 'lawyer's mental process', a lawyer is not allowed to testify in case that they are litigating.
	-* Protects lawyering function and ability to do his or her job.
	- Is justice better served by sharing arguments?
	- Now established in 26(b)3 -- codifies Hickman to some degree
		- 'Documents and tangible things' otherwise discoverable under (b)(1) (relevant, not privileged) and prepared in anticipation of litigation or for trail, only showing party has substantial need of materials in preparation of case and is unable to obtain equivalent by other means without undue hardship.
		- Under 26(b)3 
			- Written statements of witnesses, same standard (show necessity and no ability to get w/o hardship)
			- Written notation by lawyer of interviews, no way under Hickman
				- Under 26(b)3, if lawyer's impressions can be excised, may be discoverable
			- Oral recollection of lawyers -- no by Hickman although 26(b)3 does not specify
				- Could have gone either way; since 26(b)3 is silent on intangible as work product, could be interpretted to mean it is not, or could be interpretted to mean that precedent (Hickman) rules--latter is the case

_Buffalo Creek Problem_ (from supplement)

_Problem_ p. 539

26(A)(1)(a) may or may not apply to expert who will not be called at trial--depends on jurisdiction.

_Thompson v. The Haskell Co._ (p. 539)
65 F. Empl. Prac. Cas. (BNA) 1088 (M.D. Fla. 1994)
	- Plaintiff files for protective order to render psychologist report undiscoverable
	- Expert witness who will not testify can only be deposed under 35(b?) or exceptional circumstances
	- Court decides no other way for defendant to get information, thus it is discoverable

_Chiquita International Ltd. v. M/V Bolero Reefer_ (p. 541)
1994 U.S. Dist. Lexis 5820 (S.D.N.Y. 1994)
	- Chiquita's expert regarding loading bananas onto boat
	- Is person expert?
		- Court decides yes, based on technical background as marine surveyor.
	- Vis-a-vis deposition of expert, no discovery, since Chiquita could have done same inspection
	- Expert's report is discoverable in terms of facts but not opinions

In _Thompson_, defendant could not have gotten a psychiatric examination of plaintiff in this time period, but in _Chiquita_ perhaps they could have gotten technical information.

Special Treatment of Experts

_Rule 37 - Sanctions_

	- Nothing will happen unless the party seeking discovery acts--need to file motion to compel discovery
	- If other side does not comply, then file motion for sanctions

_Chudasama v. Mazda Motor Corp._ (p. 549)
123 F.3d 1353 (11th Cir. 1997)

	- Only defendant motion that was permitted was to certify question on discovery sanctions
	- Appeal is interlocutory because damages have not yet been decided
	- 37(b)(2)(c) sanctions, in this case, a default judgment
	- 37(a) motion -- order to compel
	- Question is not whether sanction was right sanction but whether order to compel was justified at all.
	- District court did not rule on motion to defendant's motion to dismiss fraud charge, directly connected to discovery
	- Failed to rule on motions objecting to interrogatories
	- 26(g) like rule 11 for discovery -- entering on default judgment was inappropriate sanction
	- Rules that allow fees in some situation
		- Rule 11: complaint/answer -- reasonable inquiry under circumstance
		- Rule 26(c): Refers to 37(a)(4), provides for fees when you are getting protective order
		- Rule 26(g)(3): fees for improper discovery (like rule 11 for discovery)
		- Rule 37(a)(4): fees on motion to compel
		- Rule 37(b)(2): fees on time spent filing for sanction
		- Rule 37(c)(1): fees and costs to seek judicial remedy for getting mandatory disclosures
		- Rule 37(c)(2): fees and costs for having to prove something that you asked other party to admit but they didn't admit
		- Rule 37(d): fees for failure to answer interrogatories, respond to request to produce, or to attend your own deposition
		- Rule 37(g): failure to participate in discovery plan
	-* Important to push fees, 'not be pushovers', show that you are moving the case

	-& Buffalo Creek computer game--go ahead!

_Peralta v. Heights Medical Center_ (p. 568)
485 U.S. 80 (1988)

	- Service must happen within 90 days, thus service was improper (untimely)
	- Question as to whether service was ever given at all.  "Sewer service" -- when sheriff never serves at all, doesn't want to deliver to poor area.
	- Court enters default judgment for plaintiff (under Rule 55).
	- Defendant's property is attached, then sold, damages awarded to plaintiff. No notice of sale to defendant.
	- Defendant files motion to vacate default judgment, plaintiff moves for summary judgment (Rule 56).
	- Lower court grants Rule 56 summary judgment. "In order to vacate must have meritorious defense."
	- Supreme court overturns ruling, saying due process should occur even absent meritorious defense.
	- 14th amendment:
		- State actor (=sheriff giving service)
		- Deprivation of property right (=land)
		- Without due process (=box to be filled)
	- Can due process be filled by giving hearing and vacating if there is meritorious defense or proof that the defendant could have gained by having process?
	- Notice and opportunity for hearing are central to due process

_Voluntary Dismissal_ (p. 573)

	- Once case is voluntarily dismissed under 41(a)(1)(i), it cannot be brought again.
	- Manshack - state law limits/expands remedy
		- 41(a)(2) - need court's permission for dismissal since answer has already been given
		- Court allows dismissal without prejudice (affirmed)
	- Grover
		- Federal Court action certified question to Ohio State Court
		- Ohio Court rules plaintiff does not have cause of action
		- Plaintiff moves for dismissal under 41(a)(2)
		- District court grants, appeals court reverses (can't dismiss)

_Summary Judgment_ (p. 627)

	- Difference between 12(b)(6) and summary judgment 56(c): in 12(b)(6) just look at complaint, in 56(c) look at discovery/facts.
	- No genuine issue of material fact, moving party is entitled to judgment as matter of law
	- Celotex case (p. 630) revolutionized summary judgment motions
	- In certain cases, look to whether plaintiff has sufficient evidence to prove case, unlike previously when issue is just lack of disagreement of material fact.
	- Prince decision (from supplement) is no longer good law: "this court is obliged to exercise care in grating motions for summary judgment..."  "no room for controversy, party cannot prevail under any circumstances", "burden is upon party moving for summary judgment to demonstrate that there is no issue of material fact and any matter in controversy is held against moving party..."  Looked at allegations in complaint, moving party had to show there was no way to prove matters in complaint.
	- Celotex changes Rule 65 dramatically: "plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery...against a party who fails to make a showing sufficient to establish the existence of an element to that party's case..."
	- As part of interrogatory, Celotex alleges plaintiff has no witnesses to prove deceased has been exposed to Celotex asbestos.
	- Court changes test and sends it back to lower court to apply new test to evidence plaintiff has submitted.
	- Moving party only has to inform court of lack of plaintiff's evidence, does not have to negate opposing party's claim, does not have to produce evidence showing opposing party cannot meet claim, only have to show lack of evidence.
	- Burden on non-moving party: need to show sufficient evidence on each element of claim. Moving party needs to demonstrate there is not sufficient evidence on any one element of claim.

Burden in _Celotex_ is on non-moving party to prove sufficient evidence for each element of prima facie case.

Party with burden (i.e., plaintiff) can move for summary judgment in factually-based case, very rare, usually motion for directed verdict.  Rule 56 does not limit which party can file for summary judgment.

_Visser v. Packer Engineering Associates_ (p. 636)
924 F.2d 655 (7th Cir. 1991)
	- Packer claims he did not fire Visser on age basis.
	- Visser needs to respond to Packer's claim because he has burden to offer evidence for each element of case.  Pre-_Celotex_, Visser would probably not have had to respond, could simply show that there was a genuine issue of material fact.
	- Plaintiff's supporting affidavits did not support plaintiff's claim on personal experiences.  Inferences are permissible if they are grounded on personal experiences.
	- In order to win case, might use:
		- Company Records
			- Consultants
			- Patterns
			- Benefits Records
		- Possible: experts, own affidavit, witnesses
Discussion of Judge v. Jury

Legal and policy arguments should *not* be separated (according to L.W.).

Right to Jury Trial
	- Seventh amendment: 'suits at common law'.
	- P. 699 problems:
		- 1.a. Jury Trial
			b. Judge
			c. Judge
			d. Judge
	- P. 332 (quirks in courts)
		- 3.b. seeks to recover diamong ring = jury trial (replevin)
		- 4.b. seeks ejectment = jury (ejectment)
	- In addition to seventh amendment right to jury trial
		- In criminal context, can only nullify law in order to acquit, not to convict
		- In civil case, judge monitors whether case is appropriate for jury even when it is within seventh amendment rights.
			- 12(b)(6): case can be dismissed for failure to state a claim upon which relief can be granted
			- 12(c): complaint and answer (as defined in 7(a)) judgment
			- 56: summary judgment. "No material issue of fact and in which party is entitled to judgment as matter of law."  If party with burden has not put forth sufficient evidence to justify each element of claim, then moving party wins summary judgment.
			- 50, 52: Judgment as matter of law--50 is in jury case, 52 where judge is finder of fact
			- 50: Directed verdict--can happen at end of plaintiff's or defendant's case, but before jury
				- At end of plaintiff's case, defendant can move for directed verdict based on claim that plaintiff has not met the burden of proof.
				- At end of defendant's case, defendant and plaintiff are likely to move for directed verdict.  Defendant could claim that, based on defendant's evidence, burden is back on the plaintiff who hasn't proven case in light of defendant's evidence.  Plaintiff can claim that its evidence has been so overwhelming and defendant's too little, so no reasonable jury could find against plaintiff.
			- After Jury Verdict, losing party can make Rule 59 motion, judgment notwithstanding the verdict.

_Reid v. San Pedro, Los Angeles & Salt Lake Railroad_ (p. 713)
39 Utah 617, 118 P. 1009 (1911)
	- Court holds that plaintiff did not meet burden of production; trial court should have granted defendant's motion for directed verdict.
	- If equally possible that cow came through broken fence vs. open gate, why doesn't jury decide?
		- Plaintiff has burden of production.
		- If you have equal inferences, party with burden loses as a question of law.
	- Post-_Celotex_, directed verdict and summary judgment have same burden.

Look to see if plaintiff has met burden of production (standard is preponderance of the evidence).

Circumstantial/statistical evidence is permitted--sometimes.

At what point do you move out of "probability" into "reasonable inference"?

_Pennsylvania Railroad v. Chamberlain_ (p. 724)
288 U.S. 333 (1933)
	- Breakman killed, decedent's estate sues for wrongful death.
	- Bainbridge heard loud crash, doesn't look up right away, but when he does look up, breakman is missing and trains are moving together.
	- Defendant has affidavits that they saw breakman fall off first
	- Trial court directs verdict for defendant.
	- 3 railroad employees claim no crash
		- With jury trial, could undermine employees credibility
		- Inconstistencies between stories
		- Eyesight
	- Directed Verdict
		- Plaintiff did not meet burden of production
		- or: court weighed evidence. (wrong rule, but maybe what court applied)
			- What if defendant had not put in evidence about employees?
			- Probably would have *not* given directed verdict

_Railroad Co. v. Stout_ (p. 731)
	- Child injured in railroad turnstyle, no dispute of facts, directed verdict denied, case goes to jury, rules for plaintiff.
	- Negligence is 'question of fact' for jury to decide

Difference between summary judgment, directed verdict, judgment notwithstanding the verdict = time in trial.

7th amendment says no court shall overrule jury.  Judgment notwithstanding the verdict works by principle that error of law was made in denying motion for directed verdict.  Cannot get jnov unless you have filed for directed verdict.

_Lind v. Schenley Industries_ (p. 736)
	- Motion for a new trial
	- 59(d): judge can rule on his or her own motion to order a new trial
	- What standard should Trial Court apply?
		- Same basis as directed verdict.
		- Miscarriage of justice--seriously erroneous decision.
		- 13th juror. (Court does not accept) -- "I would have voted the other way had I been a juror.)
	- How should trial court apply standard?
	- Appellate court review?

_Lind v. Schenley Industries_ (p. 736)
278 F.2d 79 (3d Cir. 1960)
	- Possible standards
		- Directed Verdict
		- Miscarriage of Justice
		- 13th Juror
	- Court uses 'miscarriage of justice', seriously erroneous result
	- Directed verdict: plaintiff fails to meet burden of production--need to put in sufficient evidence on each element of claim
	- Summary judgment: decision based on affidavits, depositions, etc., discovery documents (vs. directed verdict where you examine evidence introduced at trial).  Certain documents can be ignored but all can be considered.
	- 'Miscarriage of Justice': met burden of production, but not burden of persuasion
	- Judgment notwithstanding the verdict = same test as directed verdict, did not meet burden of production.
	- Miscarraige of justice: met burden of production, but 'just barely'.  Judge feels so bad about jury's decision that he wants another jury to examine the question -- i.e., retry the trial.
	- In Lind, Judge used 'thirteenth juror' standard, just substituted his or her own opinion for the jury's.
	- Standard for ruling on motion for new trial is different: reasonable jury *could* rule the way they do, but it's so unlikely, judge wants to retry case with new jury.
_Quiz Questions_

	- How to get Buffalo Mining Company Business Records
		- Rule 26(a)(1)(B) -- mandatory disclosures
			- Has to be something disclosing party will use to maintain its claims or defenses to be mandatory
			- If Pittston can make plausible claim that these documents will not be used, Pittston will not even mention them.
		- Could file Rule 34 motion to produce documents
		- Pittston may respond with 26(b) -- (1) information is not relevant, (2)(iii) burden/expense outweighs benefit, or 34(a) possession, custody, or control of *party*, Pittston could claim no control over Buffalo Mining Company.  But if Pittston claims separate entities, could create jurisdictional problems for Gerald Stern.
		- 34(b) documents have not been described with reasonable particularity
		- If Pittston does not have access to documents, could do Rule 45 Subpoena.
		- Buffalo Mining: 45(c)(3)(a)(iv) subpoena is undue burden.
		- Motion to compel under Rule 37
	- Routine Business Records of Pittston
		- Same situation except subpoena issue
	- Information from Pittston Executives Concerning failure of dam
		- Deposition or Interrogatories
		- Routine information -- interrogatories, 'smoking gun' questions -- deposition
	- Various documents filed with government
		- FOIA
	- Older personnel records of Buffalo Mining Company that you have reason to believe will soon be destroyed
		- Rule 45 Subpoena, Rule 65 Temporary Restraining Order (preliminary injunction)
		- Pittston may respond personnel records are irrelevant
	- Party fails to attend their own deposition
		- Rule 37(d)
			- Martha Tomley: had car trouble, couldn't make long drive to Charleston.  Justified because she had car trouble, unjust to impose fees because she tried to make it.
			- David: doesn't want to leave mother.  Would be unjust to dismiss David. To justify not imposing fees, could claim Pittston would have stayed the extra day anyway to depose Martha, whose absence was substantially justified.

	- Negligence damages and punitive damages for willful & wanton conduct.  Motion for summary judgment.
		- Elements of claims
			- Negligence: Duty, breach, causation, injury.
			- Wilful and waton conduct: notice and knowledge, reckless disregard, causation, injury.
		- Test to avoid summary judgment from Celotex:
			- If party with burden fails to put in sufficient evidence on any one element of the claim, cannot prevail in summary judgment.  Once moving party shows that there is insufficient evidence, non-moving party has burden to show that there is sufficient evidence.

_Claim Preclusion_
	- Two cases:
		- State Court replevin Frier v. City of Vandalia
		- Federal Court due process, same parties
	- Trial court grants 12(b)(6) motion (should have been summary judgment) on basis that there was no procedural due process claim.
	- Appellate court rests on claim preclusion entirely.  Appellate court can affirm on any basis.
	- §1738: state court decisions have same full faith and credit in every court as they have by law or usage in the courts of that state
	- State Claim Preclusion Tests
		- Same transaction test
		- Same evidence test
	- Transaction test applied in federal courts and most claim pleading states
	- Evidence test applied in most code pleading states

	- FRCP do not require compulsory joinder of claims within a suit, but case law precludes the litigation of a second claim if you chose not to bring it in the first case

_Martino v. McDonald's System, Inc._ (p. 811)
598 F. 2d 1079 (7th Cir), Cert. Denied, 444 U.S. 966 (1979)
	- Case 1: McDonald's Systems and FRIC v. Martino and brothers
	- Consent decree--prior to answer being filed
	- Case 2: Martino v. McDonald's and FRIC
	- Antitrust action
	- Rule 13a
_Martino_
	- No answer, settled.
	- Generally rule is claim preclusion applies for counterclaims etc..
	- Why might court not apply claim preclusion in this case?
		- If parties settle before answer, no claim preclusion.
	- "Exception to exception:" Look to relief granted in first case---if it is inconsistent or undoes relief from first case, claim preclusion does apply, even if answer was not filed.

Claim preclusion: could be raised in affirmative defense, then defendant would move for summary judgment (since papers from first case would need to be considered in granting the motion.)

_Searle Brothers_ (p. 818)
	- Separate individuals = separate claims
	- Martin v. Wilkes: not bound by judgment if not part of case
	- Exception: can be bound by class action under rule 23 (Hansberry v. Lee), if class representative adequately represented you
	- If person is in privity with party from case, person can be bound to that decision.
	- In first case, 100% of property is given to wife.
	- Husband and sons sue wife/mother, 'we want our half back'.
	- Majority rules that they are not in privity, because they have independent interest in property, separate from mother's interest.  Uses legal definition/case law to define privity.
	- Dissent: because sons were 'active'--testified in last litigation.  Father was in control of property, and therefore could speak for children's interest.
	- Sons had notice in first case.  Were allied with father.  Therefore, sons had some control of earlier litigation.
	- If case had been one where they might have intervened they might have been found to be in privity.
	- Generally, failure to intervene does not bid a non-party.  But because sons could not have intervened, they were less likely to be found in prviity (Utah law of civil procedure).
	- Privity
		- Legal relationship (agency, partnership) -- matter of law
		- Agreement of parties
		- Virtual representation (focus of dissent)

_Richards v. Jefferson County_ (p. 823)
	- Different parties in second case than in first.  Weren't in privity because: plaintiffs in second case had no notice in first case. (Martin v. Wilkes).

_Judgment on the Merits_
	- Presumably, has met burden of persuasion.
	- Failure to prosecute: judgment on merits because you have not met burden of persuasion.
	- 12(b)2 lack of jurisdiction: not judgment on merits.

_Gargelo (sp?)_
	- Merill Lynch sues Gargelo in state court for collection of contract
	- Gargelo sues Merill Lynch in Federal Court for violating Federal Securities Law.
	- In first case, because Merill Lynch (or Gargelo?) fails to comply with order to compel in discovery, case was dismissed.  Does the act as claim preclusion as affirmative defense in the second case?
	- §1738: State Court had no subject matter jurisdiction over securities claim, thus no claim preclusion.
	- Federal Court in second case has to act as state court.
	- Ohio: decision by court without subject matter jurisdiction is not preclusive (restatement second of judgments).

_Summary of Claim Preclusion_
	- Claim preclusion applies to claims which were brought or could have been brought.  If claim could not have been brought, it is not precluded.
	- §1738 -- use state law to determine whether there is a preclusive effect.
	- Claim preclusion only applies to parties to the first action or in privity.
	- Must have judgment on merits (not same as weighing evidence)
	- Applies to compulsory counterclaims and defenses except if you have not answered 13(a)--compulsory counterclaims are not precluded from second suit where there has been no response.  Common law says you are not barred from bringing second suit on defenses where you have not answered, except if second case would nullify first case.

_Issue Preclusion_
	- Issue must have already been litigated and determination of that issue must be essential to judgment.
	- P. 403 in supplement:
		- Faigin--sanctions under Rule 11 motion not same as issue preclusion.
	- Xantech malicious prosecution, no claim preclusion.

_Parks Case_
	- Two cases: Bertha + Jessie (consortium) v. Illinois Railroad.  Jessie not suing for own injury, but for having Bertha around.  Suing for his loss of her wifely services.
	- Bertha wins, Jessie loses.  Illinois wins against Jessie.
	- Jessie then sues for own injuries v. Illinois Railroad, for his own injuries.
	- Consortium is not same claim as suing for own injuries--using a more restrictive 'same evidence' test than that used in Frier
	- Always look to claim preclusion before issue preclusion.
	- What issue is Illinois Railroad trying to stop Jessie from relitigating?
		- Contributory negligence (claim that Jessie lost in first case because he was found to be contributorily negligent)
		- Court does not know if jury based verdict in earlier case based on contributory negligence; maybe they found based on no damages for consortium.
	- Could request that judge get a 'specific verdict'--judge will ask jury to ask a series of questions in order to determine issue preclusion.

_Issue Preclusion_

Issue must be essential to judgment, even if it's found to be actually litigated and determined.

Jury returns, decides that *both* issues are litigated and determined.

Restatement I: both issue is precluded.
Restatement II: neither issue is precluded.

	- What was actual consideration by jury?  Was it really combination of both?
	- On appeal, party needs to win on both grounds.  Might not appeal if they knew one of the grounds would not be appealed, thus issues might both 'sit there'.
	- In order to preclude a party from relitigating an issue, need to be clear that that issue was correctly decided in the first place.  If jury or judge reached verdict on two different issues, might be disincentive to appeal on one or the other (since they still wouldn't win, if one of them were correct).

_Problems_ p. 842
	- District court dismisses for lack of subject matter jurisdiction.  This is not issue preclusion in state court, since issue is not relevant.
	- Dismissed on lack of personal jurisdiction.  Issue preclusion in state court.
	- Dismissed on both grounds
		- Under 1st restatement, usually both would be precluded, but one is not relevant.
		- Under 2nd restatement, neither would be precluded.
	- After district court had dismissed on both grounds, plaintiff appeals.  Court of appeals affirms subject matter jurisdiction without reaching question of personal jurisdiction.
		- No effect on case 2. No preclusion because subject matter jurisdiction has no relevance.
	- Appellate court affirms both grounds.  Both issues precluded (returns to principle of restatement I).

_Mutuality of Preclusion_
	- Bertha v. RR, RR found negligent
		- Jessie v. RR is negligence precluded?
	- Bertha v. RR, RR not negligent
		- Jessie v. RR -- is non-negligence precluded?
	- Plaintiff v. Defendant, plaintiff loses, no valid patent
		- Plaintiff v. New Defendant, can new defendant preclude whether there is a valid patent?
	
	- Blonder-Tongue Laboratories v. University of Illinois Foundation
		- Defensive preclusion.  Plaintiff lost in first case, defendant is trying to use issue from case one.
	- Second case: Jessie has not had his day in court yet--unless Bertha and Jessie are in privity.  Cannot use Defensive preclusion to preclude new plaintiff.

_Parklane Hosiery Co. V. Shore_
	- Second Case: SEC v. Parklane
		- Proxy statement was fraudulent.
	- First Case: Stockholders v. Parklane
		- Stockholders want to preclude issue of whether proxy statement was fraudulent.
		- Different plaintiffs, trying to preclude same defendant.
		- Offensive preclusion.
		- Court is reluctant from permitting offensive preclusion.
			- Defendant might not have fought issue earlier if damages were low, etc..
			- Defendant is in court involuntarily.
		- _Blonder-Tongue_: do not need to have mutuality of parties--same plaintiffs and same defendants. Defensive preclusion is allowed without mutuality.
		- Claim preclusion *requires* mutuality of parties.
		- Court finds offensive preclusion permissible in this case.  Stockholders could not have been part of SEC action (agency regulatory action).  Even if stockholders could have joined, looked at whether defendant adequately defended SEC action.  "No unfairness to partioners" (p. 850). Extending Blonder-Tongue reasoning to offensive preclusion.
	- But--no right to a jury trial.  Couldn't this be procedural advantage?  (=unfairness).  Sometimes things trump seventh amendment.

_State Farm Fire & Century Home Components_ (p. 855)
	- Five Cases
		- 1st: jury verdict for defendant. Appeal: error--plaintiff failed to compel defendant to produce a statement that would impeach defense, thus remand for new trial.
		- 2nd: Jury verdict for defendant, no appeal granted.
		- 3rd: Jury verdict for plaintiff, affirmed on appeal.
		- 4th: Retrial of case 1.  Plaintiff wins.  Appealed, affirmed.
		- 5th: Negligence and causation--issue preclusion based on case 3 and 4. Defendant says no issue preclusion because of case 2.
	- No issue preclusion
		- Inconsistency of judgment. Would be unfair to use issue preclusion with different jury verdicts.
		- Cannot preclude someone who is not party to action before--Century Homes could not use 2nd case for issue preclusion.

Balancing issue is much more present in offensive preclusion.

For Issue preclusion:
	- Identity of issue
	- Adjudicated and determined in prior case
	- Essential to judgment
	- Full and fair opportunity to litigate (generally assumed defensive preclusion, but not offensive preclusion).
	- Do not have to have full mutuality of parties.

Criteria on p. 819
	(mixture of issue preclusion and claim preclusion).

Questions on Hand-out
1.
	a. Different transaction or occurrence--not claim preclusion at all.
	b. Might be probative evidence, but no preclusion.
2.
	a. Still not same transaction.  Probative, but not preclusive.  Could not relitigate specicication in contract--cannot restate that he delivered AB coal but that was okay with concert.
	b. No claim preclusion, different transaction.  No issue preclusion either, because issue was not adjudicated and determined.
	c. Probably yes, issue preclusion, unless he can use as basis of equity or fairness that he didn't have opportunity to fully litigate in first case, or expert testimony is new evidence, could not have put it in in first case, because it would be unfair.
	d. Whole new issue--no preclusion.
3.
	a. Williams would want to invoke collateral estoppel (issue preclusion).
	b. No--no mutuality.
	c. No, can't use preclusion against new party.
4. a. Non-mutual, Baumann, defensive.
	b. Baumann could use defensive preclusion to keep Williams from relitigating ownership of land.
5. Offensive, non-mutual, issue preclusion.  Could be used under Parkman Hosiery, 'fairness test'.
_Personal Jurisdiction_

Two issues: power and notice.

_Pennoyer v. Neff_ (p. 77)
95 U.S. 714 (1877)
	- First lawsuit is between Mitchell and Neff for unpaid legal fees
		- Neff is non-resident
		- Constructive notice -- publication
		- Neff does not appear, default judgment against Neff.
		- Neff subsequently acquires land, sells land to Pennoyer through "Sheriff's deed".
		- Neff then sues Pennoyer to recover land (ejectment).
		- Pennoyer: cannot eject me, I have sheriff's deed.
		- Neff: Sheriff's deed is invalid.
		- Under Oregon Code, how do you get personal jurisdiction?
			- Over person -- in personam
				- Appear in court
				- Be found in state
				- Be resident of state
			- Over property -- in rem
				- Have property in state
				- Property must be attached when jurisdiction is attached--when case is filed
			- Mitchell did not attach property, Neff did not own property, when lawsuit was filed
		- No jurisdiction by Oregon statute: 'constructive' notice only possible with in personam jurisdiction criteria above.
		- 14th amendment: due process of law--supports state jurisdiction rules.
		- Fight over personal jurisdiction is always going to be over defendant--plaintiff can chose jurisdiction and 'appear'.
	- Federal courts (usually) applies state law regarding personal jurisdiction.
	- If Federal Court is trying to decide whether jurisdiction was attached in first case, needs to use full faith of state law.
	- Erie Doctrine: if first case was never filed, which laws apply?

_Problems_ (p. 86)
	- 7
		- a. Case dismissed--A did not attach property.
		- b. same result--no attachment (no jurisdiction).
		- c. personal jurisdiction--B was found in Minnesota.
		- d. same result.
		- e. yes, attachment->gives in rem power.
		- f. no, notice but no power.
		- g. yes, can get jurisdiction to determine status
		- h. no, not part of exception (beyond status)

_International Shoe Co. v. Washington_ (p. 95)
326 U.S. 310 (1945)
	- Claims of Company
		- We are not there --> not taxable
		- We are not there --> no personal jurisdiction
	- In Personam jurisdiction--if they wanted in rem, they would have had to attach some property (shoes?)
	- Need to establish 'presence' -- minimum contacts/'traditional notions of fair play and substantial justice'
	- Relationship of contacts to lawsuit -> 'traditional notions of fair play and substantial justice'
	- General jurisdiction vs. specific jurisdiction
		- General: can bring any claim
		- Specific: jurisdiction is tied to claim
	- Contacts have been continuous and systematic but also give rise to liabilities sued on-->specific jurisdiction.
	- Casual/single/isolated --> no general jurisdiction.
	- Certain single acts because of nature, quality, circumstances of commission may be sufficient for specific jurisdiction.
	- Some activity is enough (substantial/pervasive) to give general jurisdiction.
	- Concept of 'appear or found' (from Pennoyer) may have become 'minimum contact' test.

_Pennoyer v. Neff_ gives us 14th amendment concept of power and notice, state sovereignty.

_International Shoe_ -- not so much 'is the person there' but 'is it fair?'
	- Minimum Contacts consistent with traditional notions of fair play and substantial justice
	- Subtantial or pervasive - general jurisdiction
	- Continuous and systematic - specific jurisdiction
	- Single act - specific jurisdiction
	- Casual/Single/Isolated - No general jurisdiction
	- No contacts no jurisdiction

Court has to have power over all defendants (can't just be over one).

*Presence* in _Pennoyer_ becomes *minimum contacts* in _International Shoe_.

In rem v. quasi in rem:
	- In rem frequently talked about as if it includes both but technically they are separate
	- In rem: attaching property for claim relating to property
	- Quasi in rem: attaching property for claim not relating to property

_Shaffer v. Heitner_ (p. 104)
433 U.S. 186 (1977)
	- Greyhound's principle place of business is Arizona, incorporated in Delaware
	- Shareholders action against Board of Directors concerning actions taken into Oregon (alleged anti-trust violations)
	- Plaintiffs sequestered stock (or alleged stock) in Delaware
	- Issues
		- Contact Issue (personal jurisdiction)
		- Whether Delaware statute was constitutional (due process)
	- Defendants argue that due process rights were violated--property seized with notice and opportunity for hearing
	- Lower Court (Delaware Supreme Court) finds in favor of plaintiffs on due process.
	- Supreme Court does not reach the _Fuentes_ due process rights because they find no personal jurisdiction. Doesn't matter if there was notice & opportunity of hearing.
	- Defendants believed _Pennoyer_ standard might still be valid--in rem jurisdiction gives personal jurisdiction.  Shaffer overturns _Pennoyer_ reading, post-_International Shoe_.
	- Directors are being sued, not corporation; thus no general jurisdiction in Delaware.
	- Abolishes In rem general jurisdiction in analysis of _International Shoe_.  Property becomes 'a contact' under _International Shoe_ standard...  essentially abolishes in rem jurisdiction, all same analysis.
	- Brennan--consenting and dissenting: Agrees with _International Shoe_ test, but feels lower court should have made decision under that test.  ...three interrelated public policies (p. 112).

_McGee v. International Life Insurance Co._ (p. 116)
355 U.S. 220 (1957)
	- Texas successor to California Life Insurance Company
	- Texas company sent reauthorization to Policy Owner in California.  He reauthorizes and continues to make patients.
	- Beneficiary of policy sues corporation in California.
	- Company was doing business with policyholder in California
		- Mail to and from California (contracts, premiums)
		- Coverage is for someone in California.
	
_Hanson v. Denckla_ (p. 117)
357 U.S. 235 (1958)
	- Will under which one daughter gets everything
	- Just because you are covering someone in Florida and mail goes back and forth doesn't mean personal jurisdiction.
_McGee_ review -- insurance, California, yes personal jurisdiction.
_Hanson_ -- trust administration, trust in Delaware, no jurisdiction, insufficient contacts.

_McGee_ they sought out business in California, reauthorized insurance; _Hanson_ trustee continued to do business in Florida...
	- Where did original solicitation occur?
	- Trust owner may have wanted to keep trust in Delaware, because they did not move it when they move

_World-Wide Volkswagen Corp. v. Woodson_ (p. 119)
444 U.S. 286 (1980)
	- Defendants: manufacturer (Audi), importer (Volkswagen), regional distributor (world-wide Volkswagen), dealer (Seaway).  Distributor and dealer fighting personal jurisdiction.
	- Woodson is judge, Writ of Prohibition to Oklahoma Supreme Court.
	- Do Oklahoma courts have in personam jurisdiction over non-resident dealer and distributor when car was sold in New York?
	- Audi/Volkswagen have nationwide marketing, dealerships, thought less likely that they would not have personal jurisdiction.  Could even triggered Rule 11 sanctions.
	- Minimum contacts
		- Protect defendants from inconvenient forum
		- State sovereignty
	- Five factors in fairness
		- Burden defendant
		- States interest
		- Plaintiff convenience
		- Interstate - efficient
		- Substantive social policy
	- Still need minimum contacts
	- Foreseeability: could have predicted that car would make its way to Oklahoma
	- What does 'personally avail oneself to privilege of conducting business within state' mean?
	- Dissent
		- Plaintiff has to show sufficient contact or sufficient interest in litigation
		- Burden shifted to defendant to prove injury to constitutionally protected interest
	
_Asahi Metal Industry Co. V. Superior Court_
	- Part I: Unanimous
	- Part IIA: 4 (not sufficient minimal contacts--need to 'purposefully direct')
	- Part IIB: 8 (not fair / consistent with traditional notions of fair play and substantial justice)
	- Part III: 4
	- Ambiguous reading of _World-Wide Volkswagen_, two interpretations by lower courts:
		- Stream of commerce -- foreseeability (used by Supreme Court of California)
		- Pursefully directed (v. purposefully availing in _World-wide Volkswagen_)
	- 2 justices: first test of _World-Wide Volkswagen_ -- stream of commerce and foreseeability
	- 3 justices: fluid line, there were minimum contacts
	- Thus, 5 justices may have thought minimum contacts was met, but under different tests
	- 4 think minimum contacts were not met

_Jurisdiction Continued..._

_Asahi_ --> fair play and substantial justice as separate prong or possibly dominant

_Burger King Corp. V. Rudzewicz_ (p. 137)
471 U.S. 462 (1985)
	- Franchise in Michigan with Burger King (headquartered in Florida)
	- Contract action, diversity jurisdiction, Burger King wants to sue in Florida
	- "Purposefully directed" activities --> Reasonably anticipate being brought to court
	- Hanson v. Denckla: purposefully avail of benefits
	- Either avail of benefits *or* purposefully direct enough goods into stream of commerce such that you would reasonably anticipate you would be haled into court.  Latter becomes debate in _Asahi_  that is never totally resolved.
	- Five factors--_Burger King_ says to 'balance them' to determine if traditional notions of fair play and substantial justice have been met or not.
	- Greater minimum contact, more need for defendant to show unfairness
	- Lesser minimum contact, more fairness needs to be weighed
	- If defendant has minimum contacts and it is 'clear', then burden is on defendant to show why it would be unfair

Power
	- Status
	- Consent
	- Minimum contacts consistent with traditional notions of fair play and substantial justice
		- Residence (general jurisdiction)
		- Incorporation (general jurisdiction)
		- Conglomeration of other contacts
			- Property is *a* contact, but not sufficient to establish minimum contacts

_Washington Equipment Manufacturing Co. v. Concrete Placing Co._ (p. 148)
85 Wash. App. 240, 931 P.2d 170 (1997)
	- Idaho company doing business in Washington, registered in Washington and designated an agent.  Is this sufficient for general jurisdiction?
	- Suing for 1994 contractual action; company registered and had agent in 1985 and 1986.  Separate incidents.
	- Plaintiff thinks registration is continuous and substantial sufficient to be general jurisdiction; Court looks at legislative intent of registration statute, but finds no evidence that registration would establish general jurisdiction.

_Burnham v. Superior Court_ (p. 150)
495 U.S. 604 (1990)
	- Scalia and three others: presence means you don't need to look at fair play and substantial justice.
	- Brennan plurality: fair play and substantial justice are met here.
Summary of Personal Jurisdiction up to this point...

_Burnham v. Superior Court_ (p. 150)
495 U.S. 604 (1990)
	- Footnote 1 (p. 152): distinguishes between presence and minimum contacts (former applies to individuals, second to corporations).
		- Distinguish from _Washington Equipment Manufacturing_--defendant is non-resident corporation; _Burnham_ is an individual who has stepped into state.
	
_Pennoyer v. Neff_ 1877
	- In rem jurisdiction over individual -- general jurisdiction.  14th amendment sets limit on personal jurisdiction based on State Sovereignty.

_International Shoe_ 1945
	- In personam jurisdiction over corporation -- specific jurisdiction.
	- Minimum contacts consistent with traditional notions of fair play and substantial justice.
	- The more contacts present, the less the claim needs to be relevant to the contacts.  The closer the claim comes to the contact, the fewer contacts necessary for jurisdiction.
	- Single act that is origin of claim gives specific jurisdiction.
	- Minimum contacts are required.  Enjoying benefits of state is one way which you may have minimum contacts.

_Shaeffer_ 1977
	- In rem over individual directors, attached 'false stock' to get jurisdiction, general jurisdiction (for activities Directors did outside of State of Delaware), some Directors had never set foot in the state of Delaware.
	- Cannot attach property for purpose of getting general jurisdiction.  Does not constitute substantial and pervasive.  
	- Property in the state still serves as a minimum contact.  Could be one of many contacts that might get to general jurisdiction, or property itself might be minimum contact if you are suing over property.
	- Attachment prior to subject matter jurisdiction attaching does not give personal jurisdiction (overturning _Pennoyer v. Neff_, where quasi in rem jurisdiction allowed attachment of property to get jurisdiction).
	- _International Shoe_ is only test
	- "Expects to benefit"
	- Brennan strong dissent on fairness--strong state interest--should not have applied _International Shoe_, but should have sent case back to Delaware for test to be applied
	- No personal jurisdiction

_McGee v. International Life_ 1957
	- Yes, personal jurisdiction in personam corporate, national stream of commerce, mail to customer in California, specific jurisdiction.

_Henson v. Denckla_ 1958
	- In personam, corporate, specific jurisdiction, mail is not sufficient for 'purposeful availment' of specific jurisdiction.  No jurisdiction.

_Worldwide Volkswagen_ 1980
	- In personam, corporate, specific jurisdiction.
	- Minimum contacts has two functions:
		- Protect defendant
		- Make sure state operates within its constitutional limits
		- 5 factors for fair play and substantial justice
		- Even if not unfair to defendant, still need to have minimum contacts.
		- 'Real foreseeability vs. mere foreseeability'.
			- Real foreseeability of the likelihood that you could be haled into court in the forum state.
			- Or Purposeful availment--if you put it in stream of commerce and foresee that it will be purchased by consumers in forum state then you have purposeful availment.
	- Brennan's dissent: just look to fairness.  Look at defendant and interest of forum state.  "Purposeful injectment" into stream of commerce should be sufficient to meet test of purposefully availing.
	- No personal jurisdiction

_Burger King_ 1985
	- In personam, corporate over individual, specific jurisdiction.
	- Purposefully availing or purposefully directing (stream of commerce).
	- Fair play, substantial justice, five factors
	- Yes personal jurisdiction over non-resident defendant who did not act physically within state


_Asahi_ 1987
	- In personam, corporate, specific jurisdiction.
	- Placing in stream of commerce
	- Action -- purposefully directed towards forum state
	- 8 agree that personal jurisdiction is based on 'fairness'
	- Scalia doesn't approach fairness at all
	- Failure to find a common standard for minimum contacts

_Burnham_ 1990
	- In personam, individual, general jurisdiction
	- 4-4 split
	- Maybe presence trumps minimum contacts, based on 'traditional' notions of fair play and substantial justice
	- 4-4 as to whether presence is test or minimum contacts
	- Yes, personal jurisdiction

_Washington Equipment_ 1997
	- General jurisdiction, corporate, in personam.
	- Must have substantial and continuous minimum contacts; registering and having an agent is not sufficient
	- Non-resident and corporation (distinguish from Burnham)

_Consent_

_Carnival Cruise Lines, Inc. v. Shute_ (p. 169)
499 U.S. 585 (1991)
	- Purchase tickets in Washington, sue in District Court in Washington
	- Carnival Cruise is located in Florida and ticket has 'forum selection clause'
	- Had notice
	- Fairness Analysis
		- Convenient to defendant
		- Judicial resources
		- Plaintiff benefits from reduced fares
		- No bad faith
		- Plaintiffs concede notice
	- Language and Negotiations
		- Carnival Cruise had more specific language
		- But is something typed on a ticket something one would expect to be contractually binding

_Wuchter v. Pizzutti_ (p. 174)
	- Statute treats use of roads by non-resident motorists as basis for power
	- Statute struck down because no notice is given by statute.

_Dee-K Enterprises, Inc., v. Heveafil Sdn. Bhd._
982 F. Supp. 1138 (E.D. Va. 1997)
	- One of few remaining difficult issues in venue
	- Group of American defendants and group of foreign defendants
	- 12(b)3 improper venue
	- Anti-trust action
	- First (b)2 personal jurisdiction analysis
	- 4(k)1
	- 4(k)2 -- if you are suing under federal subject matter jurisdiction (federal question), can aggregate all of contacts defendant has with US and bring them into federal court.
	- Defendants are subject to personal jurisdiction in United States.
	- Then (b)3 analysis--venue analysis
	- 1391(b) rather than (a), not a case which is solely diversity jurisdiction [ (a) is for cases where subject matter jurisdiction is based solely on diversity]
	- Don't go to (b)1 because not all defendants reside in same state.
	- If any one defendant is found under (b)3 then you can have venue there.
	- Need to look at contacts not with whole state but with the specific judicial district
	- Need to establish subject matter jurisdiction, personal jurisdiction, and venue for each defendant.

Forum non conveniens and Piper Case: court says 'I don't want to hear it' even after making it through all the hopes necessary to get subject matter jurisdiction, personal jurisdiction, and venue.

Three statutes allow transfer:

§1404: change of venue
	- 1404(a)--two good venues.  Allows court to transfer from one good venue to another good venue.

§1406--wrong venue.  Court will dismiss or transfer (if in the interest of jutice).

§1631--allows for transfer (subject matter jurisdiction).

Case is not dismissed under these statutes.

12(b)1--case can be dismissed for lack of subject matter jurisdiction.
	(b)3--improper venue (dismissal)

_Piper Aircraft v. Reyno_ (p. 204)
454 U.S. 235 (1981)
	- Air crash in Scotland, representatives of decedents file case in California against aircraft manufacturer Piper (Pennslyvania) and Ohio Corporation that made some of the parts.
	- US Law is more favorable to plaintiffs, defendants consent to jurisdiction in United States.
	- Defendants might file Rule 12(b)2 motion initially--but they don't.  Defendant must have met _International Shoe_ test--must have had sufficient minimal contacts with California.  Instead, they use 1404(a) (two good venues) to request transfer to Pennsylvania.  More convenient to litigate in Pennslyvania than in California.
	- Then--'actually this isn't convenient, we want case dismissed under forum non conveniens'.
	- District Court says yes--go back to Scotland.
	- Appellate Court reverses--should never use forum non conveniens when the law in the other forum is less beneficial to plaintiffs.
	- Supreme Court reverses appellate court and reinstates district court decision--standard of appeal is 'clear abuse of discretion'.
	- _Gilbert_ sets up 'private factors and public factors'
		- Private factors: Access to proof, ability to subpoena witnesses, get witnesses into court, view premises, and all other practical matters for efficiency
		- Public factors: court congestion, local interest in case, laws that govern, burden of jury duty
	- P. 208: third-party defendant mention---but this is only for derivative liability--something wrong with court's reasoning here.  Unless derivative liability/joint tortfeasor is set out explicitly in state statute, this doesn't work.
	- Foreign plaintiff--less deference to choice of forum; benefit of judicial system to plaintiff--irrelevant.

Subject matter jurisdiction

(after this, can look at exams)

Subject matter jurisdiction is power of court to hear case.

	- Federal Question Jurisdiction
		- _Mottley_ case--Mottleys were in train wreck, case settled.  Mottleys got free railroad passes among other things.
		- Later, congress passes statute forbidding free passes.
		- Railroad reneges on settlement.  Mottleys are suing to say 'specific performance'--recognize our passes, we are exception to statute.  Second, unconstitutional--no due process in taking away passes.
		- Could stipulate that Mottleys had passes and can no longer use them.
		- Court says plaintiff's claim in just breach of contract.  Doesn't matter that constitutionality of statute is mentioned in complaint.
		- When deciding if there is a federal question, (1331 "arising under"), look at plaintiff's claim...  Statutory issue is part of defense, not claim.  Thus not federal question for purposes of 1331 federal question jurisdiction.
		- Must have federal question in 'well-pleaded complaint'--what would your complaint be if you were not anticipating defendant's defense.

Problems on Page 216
	- What is actually litigated does not matter for Federal Question but rather what is the basis for claim
_Mottley_
	- What if declaratory judgment is sought?  Railroad seeks declaratory judgment as to whether revoking life pass in lawful or not.  Parties are flipped.
	- Problem 7 p. 223
		- Need to look at what the suit would have been that the 'real' plaintiff would have brought.
		- Look at 'underlying coercive action' (rather than plaintiff's well-pleaded complaint)
	- Court wants clear cut/bright line test to reduce number of federal cases

Compare Article III with §1331:
	- §1331 narrower construction.  Court interprets §1331 in ruling on _Mottley_.  Article III is not self-executig.  I.e., court interprets 'arising under' more narrowly in §1331 then in Article III.
	- Mottleys take case back to state court, appeals back to supreme court, ends up losing on the merits there.  §1331 applies to district courts only.
	- Congress could change _Mottley_ rule by changing §1331 (would not have to amend constitution)

§1332 - diversity jurisdiction
	- Doesn't say it's protecting the home state party
	- Must have diversity on opposite sides--could have multiple parties on same side from same state

_Mas v. Perry_ (p. 229)
489 F.2d 1396 (5th Cir. 1974)
	- If Judy is citizen of France, §1332 doesn't apply (only applies to citizens).
	- Where to look to find citizenship for purposes of §1332?
		- Starts to resemble personal jurisdiction
	- Wifes damages much greater--imaging of women, assumes 'peeping tom' is straight.

Example:
	- Mother and two daughters live in California, Husband in Massachusetts
	- Case 1: Child custody & support divorce on basis of sexual abuse by husband
	- Case 2: Tort action
	- First case would not be federal diversity status (according to Ankenbrandt (p.235))--divorce.  Second case could be.
	- Why do courts say diversity jurisdiction excludes divorce cases?  (you can get personal jurisdiction, but not subject matter jurisdiction).
	- In England, ecclesiastical courts heard these sorts of cases.

Corporation Cases
§1332C: note 8 on 234.
	- Look at 'nerve center' and 'muscle center' to determine citizenship of corporation

Note 5:
	- Citizen of Mexico and Citizen of Japan --no diversity under §1332
	- Califonia v. Mexico & Japan -- diversity jurisdiction 
	- California & Mexico v. New York and Japan -- diversity

_Saadeh v. Farouki_ (p. 236)
107 F.3d 52 (D.C. Cir. 1997)
	- Mr. Saadeh -- Greek National v. Mr. Farouki -- Jordanian National, permanent resident alien in US (INS category), living in Maryland
	- 'Intent of congress' in amending §1332 to provide for resident aliens--does not appear to be to allow foreign citizens to sue each other
	- Court believes congress was trying to keep permanent resident from suing in-state citizen in Federal Court.
	- Court cannot rule forum non conveniens without subject matter jurisdiction.  Since Court reads statute to say they don't have power, cannot rule forum non conveniens.
	- If they had read statutory language to allow subject matter jurisdiction, they could then rule forum non conveniens on the basis of five public and four private interests.
	- Farouki did not challenge subject matter jurisdiction on appeal; court ruled on its own.  Faruki had become Citizen, thus as long as case was within statute of limitations, he could refile under citizenship diversity.
	- Court reads statute non-literally to avoid having to decide whether statute is consistent with Article III of Constitution.

P. 243 -- when you can aggregate claims in order to reach diversity.

_Supplemental Jurisdiction_
	- Every claim might have a basis in subject matter jurisdiction.
		- Can't say 'I have Federal Question', thus add any other claim
	- §1367: Supplement Jurisdiction--if you have a State Law claim that is sufficiently tied to federal claim, you can give district court jurisdiction over State Law claim.  Article III uses 'case or controversy'--has to be 'same case or controversy'.

1331 - Federal Question
1332 - Diversity
1367 - Supplemental Jurisdiction

1331 and 1362 narrows jurisdiction, 1367 broadens.

_United Mine Workers v. Gibbs_ (p. 244)
383 U.S. 715 (1966)
	- Gibbs is mine superintendent
	- NLRA § 303 illegal to picket original mine (Gibbs' claim).
	- Jury finds for plaintiff, judge enters JNOV on claim 1--as a matter of law, is a 'primary boycott', not illegal under § 303.
	- Second Claim: Gibbs had contract for hauling.  UMW 'interfered' with second contract, again made § 303 claim, jury also finds for plaintiff.  Judge enters JNOV, not claiming that it is covered by § 303 but because damages were not proven.
	- Third claim under NLRA § 303: Gibbs lost other contracts due to 'stigma'.  Judge enters Directed Verdict because there was no evidence to support claim.
	- Final Claim: State law claim for conspiracy to put Gibbs out of job, tort.  Finds for plaintiff, supreme court reverses.
	- First three claims: § 1331.  Federal Law must be part of well-pleaded complaint (_Mottley_).  To join other claims, must be:
		- Power
			- Common nucleus of operative fact
			- Substantial
			- Expectation of one judicial proceeding
	- How could supreme court retain jurisdiction when federal question claims have been defeated?
		- Common nucleus
		- Why were claims 1 and 2 substantial enough federal claims?  Went to jury, even if plaintiff does not prevail.
		- Common nucleus of operative fact --> Article III 'same case or controversy' .  Court interprets 'case or controversy' of Article III to mean claims in case with some core of operative fact--judicial economy.
	- Does court *have* to exercise supplemental jurisdiction under Gibbs test, or does it just have power?
		- Discretion
			- Judicial economy
			- State claim predominates
			- If claims didn't go to jury

Congress codifies _Gibbs_ in 1367(a) and (c)

_Temple (MS) v. Synthes (PA)_
	- Were doctor and hospital indispensable parties? (Rule 19)
	- Pretend, instead, there exists derivative liability (Rule 14)
	- Doctor is MS, hospital is LA
	- Once defendant brings in Doctor and Hospital:
		- Temple might bring amended complaint (rule 15) against doctor and hospital
		- Doctor and hospital might bring counterclaim against Temple (state law tort claim)
		- Temple could then bring counterclaim back against Doctor/Hospital (state law)

_Kroger v. Omaha Public Power District_ (p. 920)
523 F.2d 161 (8th Cir. 1975)
	- Kroger killed when crane hits power line
	- Widow (Iowa) sues OPPD (Nebraska).
	- Rule 14 permits plaintiff to assert claims against third party defendant-Owen Equipment.
	- Owen Equipment is incorporated in Nebraska but principle place of business is Iowa.  1332(c) says corporation is citizen of both.
	- Owen does general denial, Kroger does not look to see that Owen denied principle place of business.  Owen then asserts no subject matter jurisdiction because diversity is destroyed.
	- Supreme Court reverses 8th circuit decision--rules that there is supplemental jurisdiction.
		- Kroger's claim against Owen is 'new claim'--began as indemnification joinder.
		- If court allowed supplemental jurisdiction, could open door to collusion where plaintiff picks defendant who is diverse, knowing defendant will implead non-diverse third party.
		- Supplemental jurisdiction is largely for benefit of defendants, not plaintiffs.
			- Compulsory counterclaim, impleader would have § 1367 jurisdiction.
			- For *compulsory counterclaim* do not need other independent basis for jurisdiction (= § 1367 basis for jurisdiction).
			- For *permissive counterclaim* need diversity and $75,000 (§ 1332) or federal question (§ 1331).

§ 1367(b)
	- Exception to part (a), court shall not have jurisdiction over claims by plaintiff in diversity action over persons made parties under Rules 14, 19, 20, 24--codification of _Kroger_.  No § 1367 supplemental jurisdiction.

Is plaintiff = plaintiff in counterclaim??  If doctor/hospital in _Temple_ brings counterclaim against Temple then Temple becomes defendant in counterclaim, could Temple then bring counterclaim against Doctor?  Maybe.

_Finley v. United States_ (p. 250)
490 U.S. 545 (1989)
	- Cannot bring in additional party in Federal Question case.
	- Congress then overturned Finley with §1367.  "Such supplemental jurisdiction shall include claims that involve ... joinder of additional claims and parties."

Review
	- Article III §2 - Constitutional Basis, Requires Statutory Enactment (not self-executing)
		- §1331: Federal Question Jurisdiction
			- Claims brought under constitution, laws, or treaties of United States
			- Well-pleaded complaint rule in _Mottley_ (§1331 interpretation)
				- Look to plaintiff's case, not defendant's defenses, even if plaintiff incorporates defense into complaint.
				- Under declaratory judgment (§2201-2202), look at what defendant's case would be if defendant brought case.
					- §2201/§2202 cannot expand jurisdiction--are not jurisdictional statutes.
		- §1332: Diversity Jurisdiction
			- Must have both complete diversity and $75,000
			- Complete diversity is interpretation of §1332, not of Article III.
			- Must be U.S. citizened and domiciled in a state or 'alien'
				- Taken up residency
				- Intent to remain
				- Corporation: §1332(c) -- incorporation place and principle place of business
		- §1367: Supplemental Jurisdiction
			- Under _Gibbs_, power and discretion analysis
				- Common nucleus of operative fact (Article III requirement)
				- Expectation of Single Case
				- Statutory enactment--now (under _Gibbs_ there was no statute)
			- Also codifies _Kroger_ in §1367(b)
				- Plaintiff can't bring claim against non-diverse party brought in under 14, 19, 20, 24.
				- _Finley_ was overturned by §1367(a) -- can bring in parties under federal question

_Removal_
	- §1441
	- Problems (p. 251)
		- P sues D for defamation in State Court, D believes statement is protected under First Amendment.  District Court would not have had original jurisdiction, thus no removal.
		- P sues D for copyright infringement in state court.  Defendant could remove because district court would have original jurisdiction--§1441(a).
		- Equal protection clause claim.  Yes, removable, federal question.
		- §1441(b) can only remove if action not brought in home state of defendant, so defendant cannot remove.
		- Add civil rights claim--yes, federal question trumps home state clause. §1441(c) says you can remove entire case.
		- 'None' of the parties in home state, no removal.

	-& Caterpillar case, quiz III
_Lewis v. Caterpillar, Inc._ (p. 252)
519 U.S. 61 (1996)
	- Lewis (KY) v. Caterpillar (Delaware/Illinois) and Whayne (KY)
	- Liberty Mutual intervenes (Massachusetts)
		- Wants to recoupe losses from Caterpillar an Whayne
	- Lewis settles with Whayne.
	- Caterpillar wants to remove to federal court.  Federal court must have 'original jurisdiction' under §1441(a).
	- Still exists claim between Liberty Mutual and Whayne. Also settlement between Lewis and Whayne had not been accepted by court.
	- Removal had to take place within one year (statute of limitations) §1446(b) for diversity actions §1332.
	- District court allowed removal to federal court.  Lewis moves to remand back to state court.
	- Before trial, Liberty Mutual settles with Whayne and settlement is approved.  There is then complete diversity.
	- Final judgment for defendant.  Appeal to Court of Appeals--removal was incorrect because there was no diversity at time of removal.
	- Supreme Court overrules Court of Appeals--for sake of judicial efficiency.  Even though technically Court of Appeals was correct (no diversity at time of removal), will still allow removal in interest of judicial efficiency.

Cf. _Gordon v. Steele_ and _Mas v. Perry_
	- Time of filing
	- Intent to remain

§1441 does not provide new subject matter jurisdiction.  Only applicable when federal court had jurisdiction somewhere else.

	- Exam guidelines
		-& Start working in teams on exams (don't look at answers)
		-! Only thing we don't know yet is Erie Doctrine (=choice of law, state, federal, which state)
		-& Make outline
			- Could work from Federal Rules, Course Syllabus, Flowchart from Packet
			-! Case names of major cases
				- Celotex, International Shoe, Mullaine
		- Not based on Buffalo Creek
		- Two questions, each with fact patterns
		-* Time is of essence.  Four hour exam.  Probably two hours per question.
			- 1/3 of time reading & outlining
			- 2/3 of time write
			- If you run out of time, move on to next question
		- Method
			- Who are you in exam, what are you supposed to answer?
			- Outline facts
				- Who are parties, where are they from, what are statutes involved
			- Spot issues
			- Rules/case law/standards
			- Apply to facts
			- Write:
				- Overview of where you're going to go
				- Go there
				- Tell me what to do

_Quiz 3_

	- Where can survivors sue Pittston?
		- Personal jurisdiction
			- Power (Long Arm Statute)
				- Need to meet International Shoe Test of 'sufficienct minimum contacts consistent with traditional notions of fair play and substantial justice'
				- Can sue in Delaware and Virginia (incorporation is sufficient for general jurisdiction)
				- 'Nerve/muscle' etc. goes to subject matter jurisdiction for purposes of diversity, not personal jurisdiction
				- Could get specific jurisdiction in West Virginia
				- New York--need to do International Shoe Test
				- Then look at five factors from Burger King/Worldwide Volkswagen
			- Notice (Rule 4)
				- Mullaine -- reasonable under circumstances
		- Venue
			- §1391: (a) diversity case, (b) not just diversity case
			- (c) -- any judicial district in which it is subject to personal jurisdiction.
			- (a) -- a judicial district where any defendant resides, if all defendants reside in same state
			- (b) -- a judicial district where any defendant resides, if all defendants reside in same state
		- Subject matter jurisdiction
			- If well-pleaded complaint includes Federal Question, §1331 allows jurisdiction in any federal district court
			- If plaintiffs did not raise Federal Question, need to decide where Pittston resides for purposes of diversity--§1332(c)
				- Corporation resides both in any state in which it is incorporated, and in any state where it has its principle place of business
				- Pittston is definitely citizen of Delaware and Virginia, and maybe New York ('nerve and muscle test')
				- If New York is nerve/muscle center, we can sue in federal court in West Virginia, Delaware, Virginia, and New York.
				- If West Virginia was principle place of business (or incorporated in West Virginia) then no subject matter jurisdiction in federal court under diversity §1332.
		- Lots of case law on Personal Jurisdiction, go into depth on this issue

	- Federal question jurisdiction in declaratory judgment?
		- Need to meet required interpretation of §1331 (_Mottley_ case).  Federal question needs to be part of plaintiff's well-pleaded complaint (not raising defense)--declaratory judgment statutes (§2201-2) do not expand jurisdiction.
		- What would underlying coercive action be?  What would defendants bring as claim if this weren't declaratory judgment?  If defendants claim would include federal grounds, then yes.
		- Difficult part: knowing whether defendants would have brought action involving federal claim
	
	- Survivors v. Pittston suing for damages
	- Residents v. Pittston for injunction
		- Pittston will try to bring claim preclusion
			- Claim was or could have been brought in case 1
			- Fryer case: same evidence, same transaction or occurrence
			- Survivors v. residents -- maybe some residents moved in after flood, so they couldn't even have been parties to first case
			- Need mutuality of parties (or in privity with case 1 parties)
				- Searles Brothers -- legal representation, virtual representation with case 1
	- Issue preclusion
		- Litigated and determined (Parks case)
		- Essential to judgment--restatement I and II
			- Restatement I: two issues, apply to both
			- Restatement II: apply to neither
	- No need for mutuality of parties
	- Need to look at defensive vs. offensive preclusion
	- Offensive preclusion--less favored form of preclusion.
		- Did Pittston have full and fair opportunity to litigate in Case I?
		
Quiz questions continued...

4. No claim or issue preclusion in first case, nor second case (inconsistent adjudication).

5. Survivor v. Pittston (NY Company) in West Virginia Federal Court--subject matter jurisdiction is okay
	- Then: personal jurisdiction-->_International Shoe_ test--sufficient minimum contacts consistent with fair play and substantial justice
	- Venue-->1391a: (diversity action), then 1931c (citizenship of corporation)
	- Indemnification claim Pittston v. Dasovich -- could be diversity jurisdiction (over $75,000) or supplemental jurisdiction (1367(a))
	- 1367(a)--covers joinder of additional parties for claims arising out of same case or controversy
	- 1367(b) does not apply because Pittston is not plaintiff (although this is interpretation of Pittston not being plaintiff, even though it is plaintiff in third-party claim against Dasovich)
	- Personal jurisdiction over Dasovich by status as resident or presence in state (Scalia).
	- Joinder rules: Rule 14 allowed joinder of Dasovich.
	- Dasovich counterclaims against Pittston -- under Rule 13 (and Rule 14--may bring counterclaims)
		- If claim is compulsory, can get supplemental jurisdiction
		- If claim is permissive, you can claim diversity subject matter jurisdiction between Dasovich and Pittston
	- No problem with personal jurisdiction of Dasovich over Pittston, since Pittston is already in case
	- Survivor claim against Dasovich (third-party defendant) under Rule 14 (a) sentence 7, and Rule 15 (when complaint can be amended)	
	- Personal jurisdiction and venue are fine
	- Subject matter jurisdiction -- no diversity jurisdiction.  But--could get supplemental jurisdiction?  No--under 1367(b) no supplemental jurisdiction for a claim by plaintiff against party brought in under Rule 14, 19, 20, or 24.

_Erie Doctrine_
	- Evolves over time, like personal jurisdiction

_Swift v. Tyson_
41 US 1 (1841)
	- Interpretation of Rules of Decision Act -- § 34 1789 Judiciary Act (became 28 USC §1652)
	- Tenth Amendment: powers not delegated to Federal Government or prohibited to states are reserved to states.
	- Interpretation of word 'law'--court interpreted 'law' to encompass only state statutes

_Erie Railroad v. Tompkins_
304 U.S. 64 (1938)
	- Diversity jurisdiction: Tompkins is Pennsylvania Resident, event occurred in Pennsylvania, so Erie Railrod must either be incorporated or principle place of business is New York (incorporated).
	- Personal jurisdiction: New York Court has general jurisdiction over Erie because Erie is incorporated in New York (action happened outside of New York).
	- Under state law, Tompkins would have been held as trespasser, lower standard of negligence in Pennsylvania.  Question is 'do we apply federal common law or Pennsylvania state law?' (not New York law).  Wanton negligence in state law, ordinary negligence in federal law.
	- Court finds that § 1652 also applies to judicially created state common law.
	- Could have just done statutory interpretation of § 1652, but rather resort to constitutional argument, but never clearly state which part of constitution it is based on.
	- Don't mention 14th, 5th, or 10th amendment.
	- 'Federalism'/state-sovereignty argument: when does federal government have power, and when is it reserved to states?  Judiciary should not have power to legislate.
	- Article I, Section 8: Sets out pieces of government given to federal congress.  Tenth amendment says if it is not delegated by constiution then it is given to states.  BUT--tenth amendment/article 1 section 8 do not clarify what 'law' means.
	- 'Wouldn't look right to reinterpret 100 year old precedent' -- need to use constitutional grounds
	- Reed's concurrence
		- Judiciary Article -- Article III § 2 and 'necessary and proper' clause of Article I--claims congress could legislate back to Swift v. Tyson.
	- Problems with Swift v. Tyson
		- Forum shopping
		- 'Vertical uniformity' -- would weigh in on side of federal common law
		- 'Horizontal uniformity' -- would weigh in on side of state common law
		- Court believes horizontal uniformity more important than vertical uniformity.
	- (question--if we don't want forum shopping/difference in court judgment standards, why do we even have two separate court systems?)
		- Federalism Argument--importance of states' rights
	- Federal Courts should prioritize procedure and use state's substantive law.  "No one would doubt that Federal Courts can't apply their own procedural rules."  (becomes contested later).

_Klaxon Co. v. Stentor Elec. Mfg. Co._ (p. 272)
313 U.S. 487 (1941)
	- When choosing between State Laws, use Forum State Law to determine conflict of law.
	- E.g., in _Erie_ judge first sits as New York State Judge in determining conflict of law and then sits as Pennsylvania State Judge in deciding case.

Erie doctrine continued...

_Guaranty Trust Co. v. York_ (p. 276)
326 U.S. 99 (1945)
	- Lower court had dismissed based on claim preclusion
	- Court of appeals reversed on claim preclusion, because there had been a change in the law between the first case and the instant case ('case could not have been brought')
	- Question now is whether case can continue based on state statute of limitations and federal equity court standard.  Federal Court in Equity did not have Statute of Limitations on this matter, Statute had expired under state rules.
	- Court of appeals allowed Federal Court standard, supreme court reverses saying must follow state law statute of limitations.
	- Doubt arises from question of whether Statute of Limitations is procedural or substantive.
	- Court holds that there is no bright line between substance and procedure
	- 'Outcome determinative test'
	- Merely matter of means to recovery, Erie does not apply.
	- Substantively--outcome-determinative.
	-* Reinforces vertical uniformity.
	-* Breaks substance/procedure dichotomy.
	- Outcome determinative is not a fixed meaning--paper size court rules example.
	- 'significantly' effect the result --> 'substantially the same' (p. 277)
	- State interest is much stronger than federal interest in statute of limitations--'durability of claim'--beginning of balancing test

Follow-up cases on _Guaranty Trust_ (p. 280):
	- _Ragan v. Merchants Transfer_ trumps Rule 3 (when action commences)
	- _Cohen v. Beneficial Indus. Loan Corp._ trumps Rule 23 (bond to sue corporation).
	- _Bernhardt v. Polygraphic_ state law on enforceability of arbitration.
	- _Woods v. Interstate Realty Co._ state law on where corporation can sue.

_Byrd v. Blue Ridge Rural Electric Cooperative_ (p. 281)
356 U.S. 525 (1958)
	- Question is whether judge or jury should decide whether employee is statutory employee
	- Under Federal Law, Jury decides.
	- 'Could be outcome determinative' but not necessarily.
	- Two part test:
		- Bound up with state-created rights or obligations, if not then it is a form and mode of enforcing immunity.
			- South Carolina Supreme Court does not give any reasons for its decision, thus US Supreme Court concludes that jury decision is not inextricably tied up with the statutory rights.
		- Even if 'only a form or mode', Courts should adhere as close as people to State rules when outcome determinative.
		- Then weigh other interests/state v. federal state
	- Court finds Seventh Amendment weighs heavily on Federal Interest in Jury Trial.

Example situation--state law allows lawyer to question jurors, federal law only judge can question
	- Case law--important state reasons
	- Statute -- parse, legislative history
	- Are there studies, committee hearings, commissions, etc. on issue?

_Hanna v. Plumer_ (p. 284)
380 U.S. 460 (1965)
	- Federal Rule 4(d)(1) comes into conflict with state statute
	- First--is there a conflict with State Law?
	- Then--is Rule consistent with Rules Enabling Act and constitutional?
	- If yes, then apply Rule.
	- Old "substance/procedure" dichotomy.
	- Thus: apply _Erie_ when there is no rule or statute.  In _Erie_ situation, go to _Byrd_ test.
		- Policy: avoid forum shopping, avoid inequitable administration of the laws.
	
Review Sessions:

12/6 Th 10:30-12 Room 201
12/11 Tue 10-12 Room 204 (Exam '99)

Laura's Office Hours
12/10 Mon 10-12:30pm Room 54
12/12 Wed 12:15-1:30pm Room 78
12/13 Thu 10-12pm Room 78

_Hanna v. Plumer_
	- Modifies _Guaranty Trust_ doctrine
	- Rule/statute on point -- go with rule
	- Otherwise--if outcome determinative
		- Forum shopping
		- Inequitable administration of laws
	- Question becomes--when is Rule On Point?

_Burlington Northern Railroad v. Woods_ (p. 296)
480 U.S. 1 (1987)
	- Alabama Rule requiring failed appellant to pay 10% damages, Federal Rules of Appellate Procedure 38 allows damages of single or double costs if appeal is frivolous.  Apparent conflict.
	- Plaintiff claims Statute does not conflict with Rule, claiming that FRAP-38 only applies to frivolous appeals.
	- Court disagrees--finding Rule 38 to cover all appeals.

_Stewart Organization, Inc. v. Ricoh_ (p. 297)
487 U.S. 22 (1988)
	- Question is whether to enforce forum selection clause--Alabama state law says no enforcement of forum selection clause.
	- District court sees matter as contract law -- 'state substantive law' -- thus use Alabama law, don't enforce forum selection, no transfer.
	- § 1404 does not say anything about forum selection clauses, simply says forum may be transferred.
	- Under _Hanna v. Plumer_, perhaps move to outcome determinative test.
		- But forum selection clause is not outcome determinative (more like judge v. jury example).
		- Go to state interest
			- State might want to protect citizens from forced forum selection, encourage vertical uniformity, state has interest in enforcing its own laws, legislative history
	- Court does not look to second test of Hanna--instead they decide there is a Federal Statute "on point" -- 1404.

_Gasperini v. Center for Humanities, Inc._ (p. 297)
116 S. Ct. 2211 (1996)
	- Question is whether judge can reduce amount of damages that jury awards
	- New York law allows appellate court to modify award if it 'deviates materially from reasonable compensation' while Federal basis is seventh amendment/'shock the conscience.'
	- Only district (lower) court can modify award, since seventh amendment part applies to appellate courts.

_Summary of Erie Doctrine_

	- Look at if there is conflict between federal and state law (both statutory and judicially constructed)
	- If no conflict--then apply both ('merge') (argument of plaintiff in Burlington Northern Railroad)
	- Unless Federal Law preempts --> Lincoln Mills (not essential for this course)
	- If there is a federal rule/statute on point, is it consistent with Rules Enabling Act/Constitution?
	- If no, apply state law
	- If yes, Hannah Test 1 says apply rule
	- If no federal rule/statute on point, then you have a 'pure Erie problem', look to _Bird_
	- Two tests of _Bird_:
		- If all you have is Federal Common Law (no statute/rule) in conflict, are there state created rights and obligations that would require state law to be followed, then apply State Law
		- Then, go to Outcome Determinative test, look to twin aims of _Erie_ (new test)
			- Will this encourage forum shopping?
			- Encourage inequitable administration of laws?
		- If not Outcome Determinative, use Federal Common Law.
		- If it is Outcome Determinative, look to other prong of _Bird_:
			- Other compelling reasons to apply one or the other (strong federal or state)

_Buffalo Creek Example_

P. 242-243 aggregating claims money issues
subject matter jurisdiction in state court--courts of specific jurisdiction (probate, housing, etc..)

First Subject matter jurisdiction:
	- 1332, 1332, 1367
Once you have subject matter jurisdiction you can go to any federal court.  Then limiting factors are personal jurisdiction and venue.

Under personal jurisdiction, need:
	- Power
		- Constitutional Test (14th amendment) outside parameters
			- _International Shoe_
		- Statutory/Rule Test
	- Notice
		- Constitutional
			- _Mullane_ 'reasonable under the circumstances
		- Rule 4

What claims/parties?
	Rule 18
	Preclusion
	13(a),(b),(g) (crossclaims, counterclaims, etc.)
	14 19 -- joinder of parties, 23 class action, 24 intervention
	Interplay between 13, 14 and 18... p. 919, 3(b)
	Rule 15 for amending complaint
	Rule 21 -- misjoinder is not grounds for dismissal but for severance

Cite the rule as well as the test.

Cite major cases:

Summary judgment -- _Celotex_
Personal jurisdiction -- _International Shoe_, _Mullane_

If question says 'what pre-trial motions would you file' -- go immediately to Rule 12

When would case be dismissed?
		- 12(b)(6) - failure to state a claim upon which relief can be granted, only look at claim
			- Must have alleged something for each element of claim
			- Rule 8(a) allows for 'conclusory allegations', don't have to prove that you can meet the test (except in Fraud--Rule 9)
			- § 1983 no longer has heightened pleading
		- 56 - summary judgment, going beyond pleadings
		- 50a - judgment as a matter of law (directed verdict)
		- 50c - jnov -- have to have done 50a
			- 56, 50a, 50c all have same standard; sufficient 'evidence' on each element of claim such that case should go to jury (such that reasonable jury could find for moving party)
			- _Celotex_ changed summary judgment standard to be same as directed verdict, jnov
			- Unlike _Prince_ -- copy packet -- pre-_Celotex_ standard used in Buffalo Creek
		- 59 - new trial - serious miscarriage of justice for verdict to stand
	No jury -- rule 52

_Sample Exam_ 2000

Cohen v. Commissioners
Fed Court -- Southern
Jury Trial

Complaint:
	- P1 subject matter jurisdiction
	- P2 voters/parties
	- P3 intentional discrimination
	- P4 violation of state law requiring 'clear ballot"
	- P5 14th amendment, § 1983 action 'state action, violation of federal law', requires discriminatory intent and proximate causation
	- P6 relief: new vote

Answer:
	- Admit P1
	- Admit P2
	- Deny P3 except for plaintiff's intent and how she voted
	- Deny P4 except for state statute
	- Deny 5 and 6
	- Failure to join indispensible parties 12(b)(7)
	- Counterclaim:
		- P1 demonstration
		- P2 slander -- requires intentionally and maliciously speaking falsely
		- P3 relief $100K
	- Plaintiff's answer to counterclaim:
		- Admit demonstration
		- Deny slander
		- Deny relief
		- Demand jury trial
		- Defense of subject matter jurisdiction 12(b)(1) (and 'affirmative defense of "truth"')

District court ruled:
	- Defendant 12(b)(7) granted
	- Plaintiff 12(b)(1) granted
	- Plaintiff discovery motion denied
	- Defendant motion to strike jury granted
	- Defendant directed verdict (=judgment as a matter of law) granted

Evidence:
	- Plaintiff: Jury trial, 12(b)(7),discovery
	- Defendant: Subject matter jurisdiction, dismissal of counterclaim, Rule 11

Right to jury trial--only in 'suits at common law' under seventh amendment, thus dismissal of jury trial is appropriate since relief being demanded is to revote.

Counterclaim does ask for monetary damages.  But state statute says 'all cases raising voting violations shall be heard by a judge sitting without a jury.'

Erie options:
	- Federal question not diversity case, Erie does not apply
	- No conflict, counterclaim is not about voting violations

Only way court can have subject matter jurisdiction over protest claim is under § 1367 supplemental jurisdiction.

Rule 19: what sort of people would be indispensible under Rule 19?  19(a) only--no diversity issue since it is federal question.  Probably stretch.

Denial of discovery: looks like Erie situation but not diversity action (or federal rules on point), response: federal rules go to discovery in general but not specifically with state voting since there are special rules for voting, argue compelling state interest in preventing discovery as to local state laws.

Directed verdict: no evidence of intentional discrimination, no evidence that ballot wasn't clear.

Subject matter jurisdiction--can be raised at any time (does not matter that defendants have not previously raised these points)
	- § 1331 jurisdiction for federal question, § 1367(a) jurisdiction for violation of state law if arises out of same transaction or occurrence
	- Plaintiff was arguing that state was acting in violation of constitution

_Gibbs_ analysis -- discretionary piece -- in § 1367(c)

Rule 11
	- Easy answer: didn't do 'safe harbor' situation with 21 days written notice before you can file motion with court

Question 2

Paula - Northern
 v.
Dan - Southern (driver's license Northern)
Sam - Southern (owns ski lodge in Northern), 28 miles from Northern's border, 32 miles from accident
Susan - Southern (has brother in Northern)
AAA Gun Shop - Southern Corporation 200 miles from Northern's border, told they wanted gun for hunting in snow
West Rifle - Western 1200 Miles from Northern, national advertising in gun magazines, ships to retailers in most states but not Northern

Dan - DUI - convicted (criminal)
Civil - Widow of Bill Jones v. Sam for serving too much alcohol in 1997
Civil - Sam - owns ski lodge
Civil - antitrust action against West
	Finding that substantial number of West Rifles end up in every state in the union.

Want to sue Dan, Sam, and West Rifle in Northern Federal District Court, or Northern State Court in County if can't get federal jurisdiction.

	- Can you sue there?
	- What's the effect of prior litigation?
	- What discovery do you want and how can you get it?

To sue--
	Subject matter jurisdiction, personal jurisdiction, venue

Subject matter jurisdiction--straight diversity, over amount of controversy, no problem

Personal jurisdiction vis-a-vis each defendant
	- Long arm statute reaches as far as constitution, thus don't need to parse
	- Dan - single act, meets _International Shoe_ specific jurisdiction test.
	- Sam - attachment of ski lodge not sufficient to get jurisdiction.  ONE minimum contact, but not sufficient minimum contacts for general jurisdiction.  Argue close proximity to Northern and to accident.  Sam must have lots of customers that come in from Northern, etc..  Carded Dan, knew he was from Northern.
	- AAA / West Rifle - in order to meet _International Shoe_, would look to contacts in _Burger King_ or _Hanson_, etc..  Try to ask what was missing?

Venue
	- Fine in Center because accident occurred there

Civil action with Sam owning ski lodge will not have any preclusion
Civil action with Bill Jones v. Sam -- no claim preclusion because no mutuality of party.  No issue preclusion but could be probative.  Party against whom issue preclusion is being used must have had full and fair opportunity to litigate that issue.
Civil Action - antitrust action against West -- would want to use issue preclusion.  Would this be central to judgment?
Issue preclusion to prove Dan was drunk at the time he was driving -- Dan DUI conviction

Discovery
	What else would you need to show personal jurisdiction?

WHO AM I/WHAT IS QUESTION

	Co-op student in law firm
	What are options for bringing this case?  Can we join Cohen and Kelly as plaintiffs in Eastern Federal District Court in Northeastern?

FACTS

WHO ARE PARTIES

	Hank Cohen
		Lives in Octon, Northeastern (Norfolk County/Southern District)
		Met Sam Sands in San Antonio at language institute
		Damages of $40,000 expenses, $40,000 lost profits, for breach of contract in August 1999
		Rented space in "Capital"/ED/Suffolk for class
		Conducted negotiations from his home (Octon/SD/Norfolk)
	Nancy Kelly
		Lives in Octon, Northeastern (Norfolk County/Southern District)
		Met Sam Sands in San Antonio at language institute
		Damages of $12,000 for failure to come on cruise, plus damages for negligence in eye injury
		Initiated discussions in Texas, continued from home; tort occurred at home (Octon/SD/Norfolk)
	Sam Sands
		Lives in San Antonio, Texas
		Has bank account in Alpine, Northeastern (Berkshire County/Northern District) with $20,000
		Owns condo in Alpine worth $65,000 (lets family/friends use free of charge)
		Taught Spanish in Alpine to business executives 'for good pay' in December 1996, 1997		

STATUTES

	'Sufficiency of business' statute
	Long Arm Statute
		Personal jurisdiction over claims for acts arising out of:
			1. Transacts business in state or contracts anywhere to supply goods or services in state
			2. Commits a tortious act within state (except defamation)
			3. Commits tortious act without state causing injury to person or property within state, if:
				1. regularly does/solicits business, engages in any other persistent course of conduct, or derives substantial revenue in state
				2. expects or should expect act to have consequences in state and derives substantial revenue from interstate/international commerce
			4. owns, uses or possess any real property situated in state
	Venue Statute
		Case can be brought
			in county where defendant resides
			county where claim arose
			if multiple claims
				any county where a substantial part of events/omissions giving raise to a claim occurred
				substantial part of property that is subject of action is situated
	Service -- certified mail

ISSUES
	Subject matter jurisdiction--can we get all claims in federal courts?
	Preclusion--is there claim preclusion from one claim to the other?
		Is there issue preclusion?
	Venue--can we bring all claims in Eastern Federal District/Suffolk County/"Capital" Northeastern?
	Personal jurisdiction--can we get jurisdiction over Sands on all claims with long arm statute?
	Joinder rules--can claims and parties be joined?

ANSWER
	Subject matter jurisdiction should be easy to establish in Federal Courts under 1331 (Diversity Jurisdiction.)  No need for supplemental jurisdiction in this case.
	Personal jurisdiction
		Mail alone is not sufficient to establish Personal Jurisdiction (_Hanson v. Denckla_)
		Sands being sued as individual, not as corporation, so essentially need either presence (_Pennoyer v. Neff_, _Burnham_) or Long Arm Statute
		Long arm statute
			Transacts business/contracts anywhere to supply goods or services in state
				Did negotiations with Cohen and Kelly qualify as 'contracted to supply services'?  If so, then yes personal jurisdiction, except over personal injury claim.  Would be difficult to argue personal injury 'arose out of' the act of contracting.
			Commits a tortious act within state--would negligently mailing binder constitute an act 'within the state'?  Could perhaps argue yes.
			Commits tortious act causing injury to person within state--yes, if:
				regularly does business--could argue 1997 and 1998 classes were 'regular', 'persistent', that he did derive substantial revenue
				expects to have consequences in state and 'derives substantial revenue from interstate commerce' -- need more facts on this
			Could make good argument for personal jurisdiction on breach of contract undre long arm statute.  Would have to prove regular/persistent/substantial revenue in order to bring personal injury claim.
	Venue
		Probably Alpine (Northern) or Octon (Southern), would be difficult to argue any of the venue criteria are met for Suffolk (Eastern).
	Joinder
		No Rule 19 joinder (i.e., compulsory)
		Rule 20, permissive joinder
			'in respect of or arising out of the same transaction, occurrence, or series of transactions'
			AND 'any question of law or fact common to all these persons will arise in the action'
		Thus need to prove that this arose out of the Spanish Class they took in Texas
		and question of FACT will be Sands' failure in both cases to follow through
		_Mosley_ -- discrimination suit--although not the same occurrence, same "pattern"
		_Schaeffer_ -- property counts as one minimum contact
		_Burger King_ -- five factors test, balance factors (in personam jurisdiction over *person*)
		_Worldwide Volkswagen_ -- Purposefully avail--did business in '97 and '98.  Property and bank account.

QUESTIONS

	- Do you need $75,000 for *each* claim/plaintiff or total to have diversity jurisdiction under § 1332?
	- What about other potential cruise participants, do they/can they be joined?  Needed to make $12,000?
	- Can you argue about residency under personal jurisdiction?
	- Is there any issue preclusion?