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192 Cards in this Set

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This course is about
FAIRNESS-which is about due process
First type of territorial Jx
In personam
a) an action brought against a person
b) bind the D personally
2nd type of territorial JX
In Rem
a) an action that binds property
b) adjudicates the rights of all parties who claim interest in the property
3rd type of territorial Jx
Quasi in Rem
a) an action that settles property rights of only specific persons
b) judgment may not exceed the value of the property
c) type 1 quirem-resolves dispute about property itself
d) type 2 quirem-resolved property rights that are unrelated to the underlying dispute--the property is brought within the court's jx
2 types of quirem
c) type 1 quirem-resolves dispute about property itself
d) type 2 quirem-resolved property rights that are unrelated to the underlying dispute--the property is brought within the court's jx
What does DP r/q with respect to personal jx
DP under the Constitution requires that in order to exercise jurisdiction over a person, reasonable methods must be employed to give the person notice of the action.
PvN stands for:
the presence of a person within a state justifies the exercise of in personam jx provided that person is adequately served with process--an absent non resident must be served while in the forum state
PvN with respect to property:
the presence of property within a state justifies the exercise of in rem and quirem jx provided the property is attached at the beginning of the suit
HvB:
debt as property--creditor's property (ie debt) follows the debtor wherever he goes--if this property is in the forum state, then jx can be acquired by the forum
International Shoe departs from forum in what way?
in that forum state can acquire jx over an out of state D if the D has minimum contacts with forum state
Talk about the minimum contacts
these MCs must be such that maintenance of the suit does not offend the "traditional notions of fair play and substantial justice"
Talk about part c of IS case
Whether the person availed itself to the protection and benefits of the state must also be considered
part D of IS case
systematic, purposeful, intentional, continuous--things to consider when determining MCs
Talk about Perkins v. Benguet:
Phillipines mining Co: builds upon IS--ruled in favor of GEN JX where a state can acquire jx even though activities of the D in the forum state have no relation to the c/a
Talk about McGee v. International Life Co.
a) SPECIFIC JX--when the contacts with the state are related to the dispute
b) the STATE'S INTEREST in adjudicating the dispute should be considered.
c) when determining MCs, you may want to review the direction of solicitation of business--INTENTIONAL behavior.
Talk about Hansen v. Denkla:
trust dipute: the unilateral activity of one party will possibly not subject the other to jx--MCs must be purposeful
Talk about Worldwide Volkswagen
a) foreseeability argument--a D's conduct and connection with the forum state are such that he should reasonably foresee being hailed into court there--gives predictability for Ds
b) a forum state would have jx if a D delivers it's product into the stream of commerce with expectation it will be purchased in forum state
One thing to realize about Helicopteros case:
It's an international company
What does it Helicopteros stand for?
A D's business contacts must be SYSTEMATIC and CONTINUOUS in order to establish jx with the forum
Does the purchase of products and sending CEO to TX once count?
Nope, not as systematic and continuous contacts
What else must we consider in Helicopters?
the implication for foreign trade--if the mere purchase of products from the US, and some training here will subject foreign businesses to Jx in American courts, they might be less likely to do business here
Talk about Burger King v. R, what do you do once it's been established that that the D has mcs with a state...
it is up to the D to prove that being required to defend a suit there would be "fundamentally unfair."
So, BK is a
Departure from MCs: once it is found that there are mcs, other facts may be considered
What are the other factors to consider
1) Burden on the D
2) Forum state's interest
3) P's interest in obtaining convenient and effective relief
4) interest of the inter-state judicial system
5) shared interest of the state in furthering fundamental substantive policies
Please give me the facts to Asahi:
Cal resident sued Chien Shin who cross claimed against Asahi for indemnification (Asahi now a third party D); claim between Cal and Chien Shin settled, so all that remained was the indeminity suit b/t Chien Shin and Asahi
So, Asahi shows that the
P must purposesly avail himself of the forum by more than just putting a product into the stream of commerce with the expectation that it will reach the forum state--this conduct would satisfy Mcs rule, but now we need to consider the fairness requirement
So, what do we need the D to D
D must take some act showing that it deliberately intended to take advantage of that state's markets or laws--advertising, conforming to state's regulations
How did the court hold in Asahi?
Court held that since this was a case between 2 foreign corporations, then it would be unfair to have them litigate in CA; also state had no interest since Cal resident had settled
So, what's PA
benefits a D has obtained from its business activities conducted within the forum state--International Shoe, McGee.
What's Purposeful Direction
D's activities outside the forum state that have consequences inside the forum state--Calder case(national enquiror): Calder effects test
What is the Calder effects test?
1) D must have committed an intentional act
2) which was expressly aimed at the forum state
3) and caused harm, the brunt of which is suffered and the D knows is likely to be suffered in the forum state
In a Nutshell, IS held that:
personal jurisdiction over a non-resident D exists where the D has certain minimum contacts with the forum state, and maintenance of the suit does not offend the transitional notions of fair play and substantial justice. The court should also give consideration to whether the D has a presence in the state, such as systematic and continuous activities within the state, whether the D enjoys the benefits and protections of the state’s laws, and whether it is reasonable to require the D to defend a suit there.
Nutshell part 2, Specific Jx means that
the cause of action must arise out of the activities in the forum state or the D must have purposefully availed himself of the privilege of conducting business within the state. A single business transaction is enough to satisfy minimum contacts, provided that the transaction is what gave rise to the claim, and was purposefully undertaken (McGee). Sufficient minimum contacts do not exist if the only contacts are sporadic and inadvertent (Dencla). A D must purposefully avail itself of the forum state, and forseeability that it’s product may end up in the forum state is not enough. Sufficient minimum contacts do not exist merely because a intentionally putting a product into the stream of commerce with the expectation that it will reach the forum state. There must be some showing of intention to take advantage of the state’s market or laws (Asahi). Once it is determined that there are sufficient minimum contacts the fairness factors must be considered (Burger King).
Alright, new topic, long arm statutes!
Sweet
What does Rule 4k1 say:
Federal court must look to state's laws in determining jx
The 4k1 case:
Bensuasan v. King--Federal case dealing with trademark dispute--federal courts would have concurrent jx based on 1338; the court looked to the NY long arm statute which said that the tort must have been committed in NY--in this case it was not, so federal court did not have jx over the D
What does 4k2 do?
Provides nationwide aggregation of contacts beween a foreign D and the United States in order to assert territorial Jx in federal court for causes of action arising under federal law. Note how restricted this is: must be a federal claim, and there must not be any other state that can exercise Jx over the D(a foreign citizen)
What's the 4k2 case?
Omni Capital---this was before Rule 4k2; court held there were insufficient contacts between LA and the foreign D
Presence:
MCs tests as applied to in pers jx, also apply to proceeding in rem, and quirem. In cases, where the claim in controversy arises out of the property, then this new analysis would not change the result. In cases where the dispute does not arise of THE property in question, the MCs test will prove to make jx more difficult over the D.
What's the case Shaff is talking about?
Shaffer v. Heitner-in rem J based solely on presence of stock in state of incorporation? No. J over property necessarily is J over owner's interest in the property, so MC analysis is appropriate
What's a key dealy with presence?
Jx based on physical presence comports with due process, regardless of the D's contacts with the forum state--so if you are served while in the forum state (unless in the staet on a a special appearance), you are subject to Jx of that state
What case illustrates this concept?
Burnham v. Superior Court--D served while on business trip and while visiting kids--service and jx valid
Talk about Notice:
Whenever legla proceedings affect the life, liberty, or property interest of parties, these parties must be provided with notice REASONABLY CALCULATED under the circs to apprise them of the proceedings and give them an opportunity to be heard.
Talk about notice by publication
Notice of publication fails to comply with DP where the names and addressess of the parties are known.
Case that puts for this concept:
Mullane v. Central Hanover Trust--D served notice by publication despite knowing the names and addrss of some of the P's--the court held that this type of notice was sufficient for unknown P's, but not where the names and addresses were known--should have be served by mail.
Where can we find the service requirement?
Page 293 of the text; Rule 4 of Federal Rules
A bunch of consent to JX conundrums
Consent by general appearance, Consent by K, Consent by special appearance
Consent by general appearance:
a defect in territorial jx is waivable by a general appearance--D will have consented to Jx--may be inadvertent--or the D may decide in best interests to forgo disputing J
Also, state and federal courts will find:
that a D has submitted to territorial jx if she fails to make a timely objection
a) Cueller v. Culler: D voluntarily submitted to JX by not raising any objections to JX in his answer--in a federal case, this is RULE 12H1
Talk about P's role with consent:
P is also deemed to have consented to JX in a forum in which she filed suit
a) Adam v. Saenger: Texas P filed suit in CA against CA D--D filed RULE 13 cross complaint against P--CA court has JX over cross complaint because P chose to file suit in CA!!!
Consent by K, what's the rule?
Reasonable forum selection clauses are effective in imposing jx.
Forum selection clause case?
Carnival Cruise Line v. Schutte--court upheld he forum selection cluase because
1) Carnival had interest in limiting places in which it coudl be sued, 2) spares the litigation expenses of determining correct forum, 3) passengers benefits from lower prices becasue litigation expenses go down
But in carnival, need to ask the question:
But what about the burdens on passengers of litigating far away? Is no a corporation better suited to handle litigation afar? Contract on back of tx that is not read is fair?
The other forum selection clause case: Breman v. Zapata:
"a freely negotiated private international agreement, unaffected by fraud, or overweening bargaining power should be given full effect." Implies equal bargaining power, was this there in Carnival?
Special appearance: this isn't reall related to special appearance, it's related to discovery
The failure to comply with jurisdictional related discovery may constitute implied consent to Jurisdiction.
Talk about Insurance Corp of Irelandv. CBG
D was delaying in allowing discovery and the court used Rule 37-B-2-A to impose sanctions. It states that if the D does not comply with a court order to produce documents for discovery, then the facts sought to be determined will be implied. In this case, territorial jurisdiction needed to be determined, so the court found jurisdiction based on the D’s failure to comply with discovery.
Insurance corp, to Dave
seems harsh as hell, Insurance corp must have done some bad things
Special appearance rules in CA:
California—cannot answer on the merits before you object to J—must object to J first—page 324
In Federal Court:
iii) In federal court, special appearances are permitted under Rule 12—motion for lack of J may be joined with other motions or with responsive pleading (answer).
Baldwin Rule
if you lose J argument in one forum, you cannot bring it up as a defense in another forum—for example, D loses J argument in Texas courts, judgment rendered in Texas against D, P brings judgment to California for enforcement against D, D cannot raise defense of lack of jurisdiction by Texas courts.
Ok, new TOPIC SUBJECT MATTER JX!!!
Sweet
What is subject matter jx?
is the authority of the court to hear a particular type of suit
Federal courts are
courts of limited subject matter jx--capable of hearing those suits for which jx is conferred by both C and federal statute
So, federal courts SMJ either because of
the nature of the law involved (1331), or because of the identity of the parties (1332 diversity)
Can SJM jx be cured by waiver or consent of the parties?
Nope, it cannot be cured, territorial jx can
How do we challenge subject matter jx
12H3, can be raised at any TIME!
III of C sets out a series of heads of
SMJ for the federal courts to include federal question, admiralty, diversity, USA as a party.
III grants jx to
the federal courts, and statutory implements to restrict it--in most cases, the statutory grant of jx does not go to the full extent authorized by the C
Concurrent SMJ exists
between state and federal courts in many situations--some areas where the federal courts have exclusive jx are federal antitrust suit (page 349), admiralty (1333), BK (1334), patent and copyright cases (1338)
Talk about the basics of federal question jx and the problem:
i) Article III, Section 2, and 1331 provide that federal judicial power shall extend to cases arising under the Constitution and laws of the US. The problem is the definition of “arises under.”
So, what's the rule?
(a) The Well Pleaded Complaint Rule—Louisville & Nashville RR v. Mottley (lifetime passes); the P’s federal question must appear in the allegations of the complaint.
What can't P do?
1. P’s allegation that an anticipated defense will be based on federal law is not sufficient to confer SMJ; it is impossible to be certain what defenses will be raised in the D’s answer.
What about a counterclaim?
A counterclaim that states a claim under federal law does not arise under federal law for purposes of federal trial court jurisdiction.
Smith v. Kansas City Title case:
P was a shareholder—corporation was to buy bonds—P filed shareholder derivative suit—P argued bonds were unconstitutional based on a federal statute—this was a state law cause of action, but the validity of the laws was based on a federal issue and was the only issue to be decided—the court held that there was jurisdiction under 1331—the only way to resolve the case was by federal law—this is in contrast to Merrell Dow were the federal question was just used to prove negligence of one of the parties
Talk about Diversity JX
This exists in controversie between citizens of different states and citizens of a state and foreign citizens
Rule of Blank diverstity means what?
1) Rule of Complete Diversity: no party on one side may be a citizen of the same state as any part on the other side. This is required under 1332 and was affirmed in Strawbridge v. Curtiss
Citizenship for diversity purposes is equivalent to
Domicile is the place of one’s true fixed home which he intends to return. Mas v. Perry (2 way mirrors).
How can domicile be changed
ii) Domicile can be changed by taking up a new residence with the intention to remain there
For the purposes of diversity jx, a corp is treated as a citizen both
of its state of incorporation and its principal place of business.
Principal place of business can be either
1. Where the corporation’s administration office, or nerve center is located.
2. Where the corporation carries on it’s primary production or service activities.
What does Rule 21 say?
in a suit originally filed in federal court against several D’s, one of which would defeat complete diversity, or in a suit removed from state court in which a D is added after removal, the District Court may dismiss the D under Rule 21 in order to preserve J—party cannot be indispensable party under Rule 19. CHECK THIS DAVE with your other maxims
Amount in Contro:
In diversity cases, the amt in contro must exceed 75k
So, how do we check 75k?
i) Legal Certainty Test—this requires a D opposing SMJ to prove to a legal certainty that the P cannot recover damages in excess of $75k. St. Paul Mercury Indemnity Co. v. Red Cab Co.
Talk about injunctions with respect to 75k requirement
Injunctions—difficult to value—general tendency is to find J if the amount in controversy is satisfied from either the P or D’s view.
Talk about aggregation of claims with respect to the 75k requirement
the general rule is that a P can aggregate all claims brought in a single complaint—even from unrelated causes of action—to satisfy the jurisdictional amount
Talk about amounts sought in compulsory counterclaims with respect to amt in contro:
(c) Amounts sought in compulsory counter-claims under Rule 13A may be heard regardless if it exceeds 75k. But a permissive counterclaim requires an independent basis for jurisdiction. SUPER SWEET!
What does 1359 provide?
1359 provides that assignments and joinder of parties may not be done improperly or collusively in order to invoke J.
Where does 1359 fit in?
Helluva question
Policy reasons for diversity jx
i) Protect out of state litigants against local prejudice
ii) Provide a nationwide system of courts in which important commercial disputes could be adjudicated and a uniform system of law applied—this concern was largely eliminated by the Erie decision that held that federal courts apply the laws of the state in which they sit.
Supplemental JX
1) Where a federal court has proper jurisdiction over a federal law claim, it may also hear related state law claims where both arise from a common nucleus of operative fact. This is pendent jurisdiction.
The court may also look at these factors when making it's decision with regard to pendent jx:
(a) If the issues of state law predominate over the issues of federal law.
(b) If the state claim is closely tied to questions of federal policy
(c) If the federal claims are dismissed, the court may dismiss other nonfederal claims—nothing to attach the state law claims to
(d) Judicial economy and fairness to the litigants.
Sweet!
United Mineworkers case good example of supplemental jx
P raises federal claim and files in federal court; P joins a state claim using Rule 18 (Joinder of Claims); D files a Rule 12-B-6 motion (failure to state claim upon which relief can be granted); motion was granted, so only claim left was state claim—the court used it’s discretion to hear and rule on the state claim.
To determine if there is SMJ over an additional claim, ask:
(1) Is there an independent basis for jurisdiction (i.e. diversity, or federal question)?
(i) If yes, then there is SMJ
(2) If no, then we need to look to FR 1367
Talk about 1367a
(i) 1367 A—broad grant applies to cases in which the original claim is based in federal law
a. The district court will shall have supplemental J over all other claims that are part of the same case or controversy.
Talk about 1367b, what it basically does:
1367 B—limits the grant of J made in 1367 A for DIVERSITY cases
So, if for example, D impleads a third party D...
the D impleads a third party D and this party is from the same state as the P, and P asserts a non federal claim against the 3rd party D, there will be no SMJ. GET THIS, IT'S KEY!
Or put another way:
So, P(CA), D1(OR), D2(CA)--P's state claim against D2 would not be valid in federal court
Remember that
i. J must be based solely on diversity
ii. We are dealing with P’s claims against non-diverse parties—so 3rd party D that has no diversity with P can bring a state claim against P—since 1367 B says it only relates to claims made by the P
NEED TO GET THIS!
what does 1367c do?
exceptions to 1367A where the federal court can decline to exercise supplemental jx
a. Novel, complex issue of state law
b. Other claim dominates original claims
c. District court has dismissed all other claims in which it has original J
d. Exceptional circumstances
What happened in Owen case?
P brings diversity suit against D1; D1 impleads through 14A D2—D2 is non-diverse from P—P makes claim against D2--P’s suit against D1 falls out—So now we have a state claim between 2 non diverse parties in federal court—not valid through 1367 B
Next up removal
Super sweet
What does removal allow D to do?
allows a D to shift a case from state to federal court. (D IS BOLD AND UNDERLINED)
What does 1441 allow (this question is bunk, he'd want 1441a or b
a. allows a D to remove if the P could have originally filed the case in federal court.
b. Can be removed to the Federal court where the action is pending
i. Do not confuse with transfer to another state
What about 1441B
c. 1441 B—If the suit is based on federal question (1331), the case is removable
d. 1441 B—If the suit is based on diversity (1332), the case cannot be removed if the D is a citizen of the state where the action is brought
i. If D CA, then D cannot remove to CA federal court if P filed claim in CA state court
What does 1441 C say?
—entire case is removable if non-removable claims joined with a removable claim
What happened in the Caterpillar v. Lewis case
a. P employees assert state claims based on individual employment K’s in state court
b. D removed alleging claims were under collective bargaining agreement that dealt with federal law
c. Court holds that the case was improperly removed because the P’s did not asset their claims based on the collective bargaining agreement
i. The P’s are the masters of their own complaint and choose not to raise federal issues—federal issues cannot be asserted as a defense for purposes of removal.
ii. Case was not based on diversity, and there was no federal question so the case was not removable
Talk about preemption
3. Preemption
a. Permits removal if the P has tried to please state law COA that is completely preempted by federal law—page 405
Interesting, might wanna check that out
How may a P escape removal to federal court?
4. A P may escape removal to federal court if P chooses to forego damage in excess of 75K
a. Must do this before removal
P may also try to destroy removal by
joining Ds that would destroy complete diversity
Diversity case must be removed
within 1 year of its filing in state court
Procedure for removal:
a. D must file notice of removal in state court
b. D has 30 days from receipt of complaint to file a timely notice
c. P’s motion to remand must be made within 30 days of removal for anything other than a defect in SMJ
i. Motion to remand for improper removal based on SMJ may be made at any time
New section: Venue
Super Sweet
What statute might you look at
1391
What does 1391 A1 and 1391 B1 say?
i. Venue is available in any judicial district where a D resides, so long as all D’s reside in the same state.
1. D (CA), D(OR)—venue not available
2. venue only available where the D resides—not where maintains permanent domicile
IS THIS RIGHT?
What does 1391 A2 and 1391 B2 say
i. venue is available in a judicial district in which a substantial part of the events giving rise to the claim occurred—or a substantial part of the property that is subject to the action is situated
What does 1391 C say?
i.a corporation is said to reside in any judicial district in which it is subject to in personum J
What does 1404 do?
change of venue-transfer
Talk about 1404A
i. A district court may transfer any civil action to any other district where it may have been brought
1. in the interest of convenience
2. factors—page 430
a. place where facts occurred
b. convenience of parties, witnesses
c. access to proof
d. ability to compel attendance of witnesses
e. courts familiarity with the law
f. trial efficiency
3. not subject to waiver by the D
What does 1406 do?
3. 1406—if venue is wrong, the district court may dismiss or transfer
Talk about Van Dusen v. Barrack case:
a. If a D initiates a transfer under 1404 A, the transferee court must follow the choice of law rules that prevailed in the transferor court.
i. If this was not the case, the D would basically nullify the P’s choice of forum
b. 1404 should not create opportunities for forum shopping
c. 1404 should turn on convenience
What happened in the Caterpillar v. Lewis case
a. P employees assert state claims based on individual employment K’s in state court
b. D removed alleging claims were under collective bargaining agreement that dealt with federal law
c. Court holds that the case was improperly removed because the P’s did not asset their claims based on the collective bargaining agreement
i. The P’s are the masters of their own complaint and choose not to raise federal issues—federal issues cannot be asserted as a defense for purposes of removal.
ii. Case was not based on diversity, and there was no federal question so the case was not removable
Talk about preemption
3. Preemption
a. Permits removal if the P has tried to please state law COA that is completely preempted by federal law—page 405
Interesting, might wanna check that out
How may a P escape removal to federal court?
4. A P may escape removal to federal court if P chooses to forego damage in excess of 75K
a. Must do this before removal
P may also try to destroy removal by
joining Ds that would destroy complete diversity
Diversity case must be removed
within 1 year of its filing in state court
Procedure for removal:
a. D must file notice of removal in state court
b. D has 30 days from receipt of complaint to file a timely notice
c. P’s motion to remand must be made within 30 days of removal for anything other than a defect in SMJ
i. Motion to remand for improper removal based on SMJ may be made at any time
New section: Venue
Super Sweet
What statute might you look at
1391
What does 1391 A1 and 1391 B1 say?
i. Venue is available in any judicial district where a D resides, so long as all D’s reside in the same state.
1. D (CA), D(OR)—venue not available
2. venue only available where the D resides—not where maintains permanent domicile
IS THIS RIGHT?
What does 1391 A2 and 1391 B2 say
i. venue is available in a judicial district in which a substantial part of the events giving rise to the claim occurred—or a substantial part of the property that is subject to the action is situated
What does 1391 C say?
i.a corporation is said to reside in any judicial district in which it is subject to in personum J
What does 1404 do?
change of venue-transfer
Talk about 1404A
i. A district court may transfer any civil action to any other district where it may have been brought
1. in the interest of convenience
2. factors—page 430
a. place where facts occurred
b. convenience of parties, witnesses
c. access to proof
d. ability to compel attendance of witnesses
e. courts familiarity with the law
f. trial efficiency
3. not subject to waiver by the D
What does 1406 do?
3. 1406—if venue is wrong, the district court may dismiss or transfer
Talk about Van Dusen v. Barrack case:
a. If a D initiates a transfer under 1404 A, the transferee court must follow the choice of law rules that prevailed in the transferor court.
i. If this was not the case, the D would basically nullify the P’s choice of forum
b. 1404 should not create opportunities for forum shopping
c. 1404 should turn on convenience
Talk about Ferens, what makes it special?
This is a situation where P initiates the transfer--the issue is whether the decision in Van Dusan would apply here
What did the SC say in Ferens?
i. The SC that the transferor choice of law must apply to the transferee court.
1. the D does not lose anything—at most a non-legal advantage
2. applying the transferee law would undermine Erie
3. Forum shopping not an issue because he could obtain his choice of law by the choice of initial forum
4. 1404 should turn on convenience, not possibility of prejudice
5. dissent—file and transfer ploy
Distinguish Transfer from Forum Non-Conveniens
a. 1404 transfer, while forum NC is a dismissal
b. 1404 available on a lesser degree of inconvenience
c. 1404 permits transfer of cases brought under state and federal law
what does 1407 say?
says that cases may be consolidated for pre-trial proceedings when they deal with the same facts—then sent out for trial after pre-trial
Alright, new section: forum non conveniens:
Sweet
Talk about the quick facts of Piper:
a. Accident in Scotland—all P’s interests are in Scotland—D’s are in US—P’s file in US to take advantage of laws—D’s move for forum non Conveniens because Scotland would be more appropriate forum
What did court of Appeals say about Piper?
i. Court of Appeals says that the disadvantageous change in law if case is moved to Scotland precludes forum NC
And the SC does what?
ii. SC reverses—says that main concern for forum NC is convenience—need to retain flexibility—appeals decision would greatly increase the flow of litigation into the US
1. dismissal is appropriate:
a. P’s choice of forum places heavy burden on the D or the court
i. Burden for witnesses, co-D, or third party D
b. P unable to offer any specific reasons of convenience to support his choice.
So, what is another factor to consider
iii. Unfavorable change in law is a factor to consider
1. but remedy offered in the alternative forum must be so clearly inadequate that it is no remedy at all
Motion to dismiss on forum NC in federal court is proper only
when the alternative forum is a foreign country
If alternative forum is in the US, what should you do?
Proper motion is motion to transfer under 1404A
Conditions on dismissals
a. Commons for a court to condition dismissal on an agreement for D to waive defenses—in personum, SOL
b. State courts do not have power to directly transfer to courts outside the states, but do have power to condition dismissals
New section: the Erie Problem
Sweet
First case, pre-Erie=Swift v. Tyson. What's the question here
if the fed courts had to follow state law when there was general law that could rule
So, distinguish federal law and general law. First talk about federal law
Federal law was the law of the national govt based on the C, treaties, statutes
General law, which is not around anymore was
1. General common law applied by all civil courts, federal and state
2. No modern equivalent
3. kind of like Restatement
4. neither jurisdiction conferring or supreme—state’s did not have to follow
What's state (local) law
non-federal, non general
How did SC hold in TYSON
federal courts should follow general law rather than state law where state law deviated form general
Check out page 490 for
a. The Rules of Decision Act and Erie apply to all cases in federal court, regardless of their basis for SMJ
i. Even though Erie problems are generally in diversity cases
Progession of the Erie Problem. We go to Erie v. Tompkins railroad, what does it do?
Overturns Swift
What's the holding of Erie?
b. Holds that, except in federal question cases, the law to be applied in federal court is the law of the state in which the forum sits
i. i.e. CA federal courts will use CA state law
ii. Does not matter if state law is statutory or common judge made law
What does the SC recognize in Erie?
c. SC recognizes that forum shopping was a problem
i. Parties can manipulate diversity to get around state law and use federal law—Black and White taxicab
SHOULD PROBABLY CHECK THIS OUT
I think it's like this: Before Erie, you could have diversity people sue in federal court solely for the purpose of getting the federal law applie because it's better for you. In Erie SC has had enough of this forum shopping. Bingo Bango Bongo
Erie gets rid of
general law
Different interpretations of the Rules Enabling ACt
"the laws of several states..."
1. Swift thought this meant general law
2. Erie says that this means state law
Talk about the Rules Enabling Act of 1934
Authorizing the adoption of the FRCP
What's the big question that has to do with REA of 34
b. Do the state courts follow the federal or state rules of procedure in diversity cases?
i. “Said rules shall neither abridge, enlarge, or modify the substantive rights of any litigant
Next case is Guarantee Trust v. York. What's the test here?
Outcome determinative test
What's the test for?
i. This comes about when determining if a federal/state rule is procedural or substantive
1. if it is substantive, through the Erie decision, the federal court would need to use the state law
2. If procedural, the federal court can use the FRCP
what is the outcome test?
i. If the application of the federal rule would bar recovery in federal court based on a state created right, then the state law must apply
ii. If the application of the federal rule would not be determinative in the outcome if the litigation, the federal rule can apply
What concern does this test come out of?
c. This test comes out of the same Erie concern that a federal diversity decision should be essentially the same as the decision would be in state court.
In Guaranty, the issue was SoL, what did the court determine
Court determined that the state SOL should apply since it was outcome determinative
IS THIS JIM'S go to case that says that SOL issues are substantive?
Note about equity cases
deals with issues of fairness, injunctive relief
Talk about Sibbach v. Wilson, what's the issue
Personal injury case, FRCP 35a calls for physical examination while state law does not allow
Distinction between something and something
see outline
How does SC Rule
ii. SC rules that this right is procedural and not substantive, so federal rule can apply
Palmer v. Hoffman
see outline
Regan v. Merchants Transfer, give quick facts
a. P files complaint within state SOL—P relies on FRCP 3 that a civil action is commenced with the filing of the complaint (so state SOL tolled)
i. See page 490—rule 3 is routinely regarded as providing the tolling of the statute limitations when complaint is filed for suit based in federal law
What does State law say on the matter?
b. State law says that the action was commenced with service of process—P did not serve D until after the SOL—state or federal rule??
c. QUESTION—what action tolls a state created SOL on a state created COA?
i. State rule!!!
I believe this is the case that says SoL goes to state
Talk about Byrd v. Blue Ridge, what's the dispute?
a. Dispute—whether the state ruling that a judge rather than a jury will decide factual issues relating to state W/C
Need to figure out what W/C is...
What test does Byrd use?
i. Integral part of the state statute?
1. SC here says judge/jury distinction not integral part of statute
ii. Importance of the federal interest
1. here the interest if the 7th A that assigns decisions of disputed facts to jury
iii. Outcome determinativeness
1. judge/jury does not necessarily affect the final outcome
Jimenez hates the
balancing test
Hanna v. Plummer says that all Erie questions must be analyzed with reference to
Erie’s TWIN AIMS
1. discouragement of forum shopping
2. avoidance of the inequitable administration of laws
Hanna on service of process. basically fed rule says one thing and state rule says another:
federal rule 4d1 only requires that service be made to the D’s home and left with someone of suitable age and discretion.
i. Mass state law requires service must be made in hand to executor and within 1 year of bond
State or federal rule, how do we decide?
i. Do the rules have anything to do with forum shopping?
1. No, the difference in rule would only force D to change the way of serving process
ii. Inequitable administration of laws?
1. No, because, as said above, this only applies to the way service was made
Whose service of process law, state or federal, should be used when the process is being issued form the federal court?
1. Federal has an interest for the uniform and simple application of laws—now everyone will know that FRCP re: service will apply
2. Given federal interest, we apply federal rule—HANNA TEST
Erie's holdings
1. The outcome determinative test cannot be read without reference to Erie’s Twin Aims—see A above
2. When the FRCP conflict with state rules, the FRCP will prevail unless it violates the C or the Rules Enabling Act

So, how do we actually do it?
Talk about Gasperini's facts
a. Photographer gives slides to D—D loses them—trial court awards large verdict—trial court refuses D’s motion for new trial—court of appeals uses the NY “deviates materially” standard and ordered a new trial—P alleges that the Appeals court was prohibited from reviewing facts tried by the jury under the 7th A except where authorized by federal law (“shocks the conscience” test)
What does majority say in this case?
i. Majority—reasons that the court of appeals was correct in applying the state standard
What does Scalia dissent say?
1. the review of jury verdicts necessarily requires a reexamination of the facts—federal courts are constitutionally forbidden to do this
2. FRCP 59 limits new trials based only on federal law—this appears to be in direct conflict with NY statute
a. So when there is a state and federal conflict, the federal interest should win—so apply federal shocks the conscience test—no reversal
What does Semtek stand for?
a. Dismissal that is not on the merits does not preclude you from filing in another J.

I think he talked to CF, JTS, and DB about this, probably need more
Next section, Res Judicata
Good
What is Res Judicata?
a. Claim preclusion
i. Refers to the finality attached to a final judgment
What is collateral estoppel?
a. Issue Preclusion
i. Refers to the finality attached to a final judgment on a particular factual or legal issue
ii. Once a court decides an issue of fact or law, CE prevents that issue from being re decided by another court in later litigation
What is Bar and Merger?
a.If P wins her claim against the D, that claim is merged in the judgment and the P may not bring that claim in further litigation against the same D
b.If P loses her claim against the D, that claim is barred in future litigation brought by P against the same D
What is a direct attack vs. collateral attack?
4. Direct Attack v. Collateral Attack
a. Direct Attack
i. Appealing to a higher court
b. Collateral Attack
i. Filing another lawsuit to ask a different court to decide the same issue
ii. In the even of inconsistent judgments the last in time rules
Example: D is bus company--P1 injured in bus accident and sues D--P1 wins on issue of negligence against D--can P2 use P1 judgment on negligence?
i. 3 questions
1. Are there the same factual issues?
i. In this case yes.
2. Was there a final judgment in P1 suit? (not appealed?)
i. In this case yes
3. Is the party against whom the CE is to be asserted the same, or in privity, as in suit 1?
i. In this case yes
How do we deal with privity?
if the first suit is brought against the driver, and there is a final judgment for the P—when the second suit is brought against the driver and the bus company—the bus company might be estopped from litigating the negligence issue because if the driver
i. Privity—is there a proprietary interest?
1. In CA wife has an interest in husbands wages, so there is a proprietary interest—so if husbands loses for lost wages, then she is estopped