RULES 1331-“arising under” 1332 -diversity jurisdiction

o (c)(1)-corporations as citizens of a state incorporated or principal place of business

1335-statutory interpleadero establishes jurisdiction based on minimal diversity so long as there is diversity between

at least two adverse claimants and amount in controversy is greater than $500o (a) $500 amount in controversy

(1)minimal diversity requiremento (b) action can be brought even if titles or claims of different claimants do not have

common origin, are not identical, but are adverse and independent of one another 1441- removal of civil actions

o (a)-general removal-original jurisdictiono (b)-1332 removal

if any joined defendants are residents of state in which action brought, case is not removable under 1441

o (c)- if there is a 1331 claim and state claim, a case may still be removed to federal court if one of the claims would have been able to be removed there; district court may choose to sever the state claim and remand it

1367 –supplemental jurisdictiono (a)-general supplemental-closely related claims to

in any action where district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related that they form part of the same case or controversy

this includes claims that involve joinder or intervention of additional parties o (b)-no supplemental for claims that have original jurisdiction solely based on 1332

applies to closely related claims by impleaded parties (14), joinder (19) (20), or parties joinder by 24

o (c)-a few ways to deny supplemental over a claim under (a) 1391-venue

o (a)(1) deals with civil actions brought in district courtso (2) shall be decided regardless of whether local or transitory in nature o (b)-general-where a civil action may be brought

(1)-judicial district of any defendant (2)-district where large part of cause of action or property involved with cause

of action is located OR (3)- if we may not bring in (1) or (2), then any court that has personal

jurisdiction over defendanto (c)-residency

(1)-party resides in any judicial district where domiciled (3)-foreign defendants may be sued in any judicial district

o (d)-corporations in states with multiple districts any venue/district suffices if there is personal jurisdiction over corporation

(most significant contacts of district=best)o (f)-foreign defendants

1397-venue for interpleadero actions of 1335 interpleaders may be brought in the judicial district in which one or

more of the claimants reside

1404 –change of venue-based on convenience o (a)-general

action may be transferred to any venue in where it may have been brought or which parties have consented

NOTE: this is based on convenience of venueo (b)-action may be transferred by court’s discretion to any other division in same district

upon consent or motion o NOTE: law of transferor forum applies (Van Dusen) (Ferens)

1406- cure or waiver of defects-remedies for improper venueo (a) court can dismiss or transfer case filed in wrong division or district court to any

other court in which it could have been brought. NOTE: transfer under 1406= law of transferee forum applies

o NOTE: this is for transfer to appropriate venueo (b) court’s exercise of jurisdiction is valid if party does not bring timely and sufficient

objection to the venue (under 12(b)(3))?o (c) “district” entails territorial jurisdiction of each court (Guam, Mariana Islands, and

Virgin islands included) 1441 1738-full faith and credit clause 2361- process and procedure

o once a statutory impleader is commenced (1335), the court may restrict all claimants from starting or continuing any action that would affect the stake, and discharge the stakeholder from liability-wikipedia

o service of process proper anywhere in US for interpleader-court may enjoin other proceedings and make appropriate orders to enforce its judgment

o aka allows injunctive relief with respect to COLLATERAL actions (1335) involving money or intending to be filed. We are enjoining further prosecution of anything else that is going on.

This is because we don’t want other actions to come to judgment before 1335 actions because we would have to give them full faith and credit

Can also get injunctive under 2361 with a 1332 + 22 interpleader 4-service of process –(pair (k) with 2361 when 1335 case)

o (a)-contents; amendmentso (c)-service

(1)-summons + complaint (2)-any person at least 18 years old and not a party may serve the summons and

complaint o (d)-defendant may waive service of summonso (e)-serving an individual within a judicial district of the US-cant be minor, incompetent,

or person who filed a er (1)-follows state law for how to serve or (2)

delivering copy of summons and of complaint to individual personally leaving company at individual’s place of dwelling or usual place of abode

with someone of suitable age and discretion who resides there delivering copies to agents authorized to receive service of process

o (f)-serving an individual in a foreign country o (g)-serving a minor or incompetent person o (h)-serving a corporation, partnership, or corporation o (j)-serving a foreign, state, or local government

o (k)-territorial limits of effective service (basically properly serving process gains jurisdiction over a person once other jurisdictional requirements are met)

generally, serving a summons or filing a waiver of service establishes personal jurisdiction over D:

(a) who is subject to the jurisdiction of a court of general jurisdiction in the state where district is located

(b) who is joined under 14 or 19 and is served within a judicial district of US and not more than 100 miles from where summons was issued

(c) when authorized by a federal statuteo (m)-time limit for serviceo (n)-asserting jurisdiction over property or assets

12 o see elaboration below o (a)-defendants must serve a responsive pleading within 21 days of being served

summons and complainto (b)-see 7 ways (below) to make a motion (defense) to the complaint/litigation against

them. Must be made in responsive pleading if required and before pleading. (special appearance?)Otherwise can be asserted in pre-trial motion. If no responsive pleading is needed, then they may be asserted at trial. May be joined together

o (g)- you can join any motions together. Motions MUST be made together at same time if possible unless 12(h)(3) exception

o (h)- (1)- waiving and preserving certain defenses-(more elaboration below) defenses 2-5 are waived when omitting it from a motion (12(g)(2)) or failing to make it by motion/or include in responsive pleading

(2)-all other defenses (not 2-5?) may be raised in any pleading allowed under 7(a), motion under 12(c), or at trial

(3)-lack of subject-matter jurisdiction= court must dismiss action 13

o (a)-compulsory counterclaim – (1)related counterclaims must be stated at time of pleading

(a) claim must arise from same transaction or occurrence that is subject matter of opposing party’s claim

(b) cant add another party over whom court doesn’t have jurisdiction (2) exceptions –don’t need to state claim if..

(a) when action was commenced, the claim was subject of another pleading action OR

(b) opposing party sued on claim by attachment so there is no personal jurisdiction over pleader on claim, and pleader asserts no counter claim

o (b)-permissive counterclaim- pleading may state as a counterclaim against opposing party that is not

compulsory o (g)-crossclaim against a coparty-pleading may assert a crossclaim against a copraty so

long as claim arises out of same subject as original action/counterclaim D may also file 13(a) or (b) counterclaim against crossclaim to co-party After filing 13(g), D may file other unrelated claims against co-party under 18

o (h) additional parties brought in by 13(a) must satisfy rules of joinder under 19 and 20(a)..aka there must be relationship between all parties and cause of action

14-impleading-generally any claims from P to 3rd party D or counterclaims cross claims, etc. from 3rd party D must be related (arising out of same transaction)

o (a)-when defendant may bring in 3rd party defendant-defendant must get court’s permission if impleading more than 14 days after serving its original answer

o (b)-3rd party’s claims and defenses-NOT ON EXAMo NOTE: you must establish some kind of relationship between 3rd party P and 3rd party D

in order to implead. Aka what is 3rd party P’s claim against 3rd party D 18-joinder of claims

o (a)-general a party asserting a claim, counterclaim, crossclaim, or third-party claim may join,

as independent or alternative claims, as many claims as it has against an opposing party

o (b)-joinder of contingent claims a claim may be joined even if it is contingent on the disposition of the other

19- persons to be joined –as long as court has subject-matter jurisdiction over person-closest to mandatory joinder

o (a) (1)-required party

(a) in person’s absence, the court cannot accord complete relief among existing parties OR

(b) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may

o (1) impair person’s ability to protect the interest ORo (2) leave an existing party subject to a substantial risk of incurring

double, multiple, or otherwise inconsistent obligations because of interest

(2)-court may order a required party be joined (3)-if joined party objects to venue and joinder would make venue improper, the

court must dismiss that partyo NOTE: failure to join 19 party can be raised under r12(b)(7)o (b)

if party required to be joined cannot be joined, the court must take into account certain factors to decide whether or not this party should be dismissed

20-permissive joinder of parties-court may order to split parties into separate actions to avoid embarrassment, delay, expense, prejudice, etc.

o (a)-there MUST be relationship between cause of action and all parties to satisfy rule 20(a)

(1)-plaintiffs if they jointly assert right to relief arising out of the same transaction OR any question of law or fact common to all plaintiffs will arise in the action

(same nucleus of fact) (2)-defendants

if any right to relief is asserted against them jointly with respect to the same transaction AND

any question of law or fact common to all defendants will arise in the action

(3)-extent of relief-plaintiffs or defendants relief need not be concerned with the entire relief

22-interpleadero (a)

(1)by a plaintiff- persons with claims that may expose P to double or multiple liability may be joined as D’s and required to interplead. This is proper even though..

(a) claims of several claimants lack common origin and are independent or adverse rather than identical OR

(b) plaintiff denies liability in whole or in part to any or all of the claimants

(2)by a defendant –D exposed to similar liability may seek interpleader through a crossclaim or counterclaim

o (b) doesn’t limit joinder of parties under 20 this remedy is to be seen as additional but not to supersede or limit remedy

under 1335, 1397, and 2361. Actions under those 3 must be conducted under

I. Jurisdictiona. Subject-Matter-Article III mandates there will be a supreme court and that

we may exercise subject-matter jurisdiction over a case arising under federal law (1331-accepting invitation in constitution to address issues arising under constitution) or between diverse parties (1332). Any not enumerated must be brought in state court

i. Diversity-1332-we want to avoid bias by certain state courts when hearing cases involving non-residents so federal courts can hear cases in which there is complete diversity among the parties

ii. Diversity-1335(a)(1)(interpleaders)-requirement of minimal diversity –for efficiencies sake, we want to litigate with parties at the same time and block against collateral actions

1. Citizenship Individuals

o Have domicile in the state Domicile= has physical residence in a state and intent to

remain there indefinitely Corporations are considered to be “resident of a state” if

o They are incorporated there ORo It is their principal place of business (WHAT CASE?)-o (can have citizenship in two places)

2. AND Amount in Controversy o Above $75,000 in controversy for 1332o Above $500 in controversy for 1335

3. Exceptions(1332) Limited exceptions specifically created by congress

o Unincorporated associates (unions)= citizens of every state where has members

o Statutory impleaders: minimal diversity requirement o Claims covered by supplemental jurisdiction, like those brought by

third party defendants. In class actions, only citizenship of representatives need to be diverse

iii. Federal Question-1331-federal court should be able to hear cases that involve the application of federal law

1. Well-Pleaded Complaint The complaint must arise under federal law

o Federal question must appear on the face of the plaintiff’s complaint. Elements of the claim and nothing more

Merrel Dow Pharmaceuticals v. Thompson In a mixed complaint- (federal and state), federal

question jurisdiction exists if federal claim is an essential element

o NO anticipatory pleading Federal law MUST give rise to cause of action Jurisdiction must apply at the time of filing (face of

complaint), can’t surround what the defendant MAY do-like a defense

Federal defenses and counter claims are not sufficient to have subject-matter jurisdiction or suffice for purposes of removal to federal court

Smith v. Kansas City

iv. Supplemental NOTE: if there is an independent basis for jurisdiction-aka diversity, DO NOT

address supplemental jurisdiction o If we are bringing in a third party defendant under 14(a), and they are

diverse then we are dealing 1332 not 1367 Federal rules of joinder are very generous because we want to get as much

under one tent at one time Expands subject matter jurisdiction beyond what it was 1367 (a)-Even if a counter claim (13(a)) is a state claim and it is brought in

an action involving a federal claim (1331) then we may join the claims for efficiency under 1367(a)

o Federal jurisdiction continues and also applies with respect to the joint claim

o Also applies to 13(g) cross-claim Note that without 1367….cross-claims NEED to have original

basis for jx. Aka without 1367, if the two D’s aren’t diverse or the cross-claim isn’t a federal question, then there is no jx over the cross-claim whatsoever

o Also applies to 14(a) impleading of third party defendant –so long as third-party claim closely related

o Also applies to joinders-19,20,24o Also 13(a) and (b) counterclaims that don’t arise out of same

transaction but are so closely related 1367(b) takes away basis of supplemental jurisdiction if it is solely based on

1332 if state claim is brought by plaintiffs!o (3) DOES NOT apply to clams by plaintiffs against people made

defendants under 14(a)o 3rd party defendant may file claim against plaintiff under 14(a) if only

1332

o IF there is a case involving 1332 AND 1331-then 1367(b) does not preclude the possibility of bringing in the supplemental state claim

o Strawberry v. Curties-required complete diversity

b.Personal-court will render a judgment binding on the plaintiff who chose to acquiesce to jurisdiction by filing. The defendant must be served proper service of process to begin looking at whether there is personal jurisdiction

You can serve jurisdiction over a o Residento Present non-residento Absent non-resident that has minimum contacts with the forum

state-purposeful availment (test viewed in light of all attendant circumstances)

i. Traditional Basis1. Consent

o Impliedo Hess v. Palowski

Court views that contractual forum selection clause is not unconstitutional if reasonable

o Expresso Carnival Cruise Lines

Arbitration clause to litigate in Florida Whole case examines whether the chosen forum is

reasonable Not unusual/unreasonable to litigate in FL-the cause of

action did not take place in home state of P and Carnival has an interest in keeping litigation in FL due to being incorporated in there and being a large corp. with many litigations

Exercise of jurisdiction can be EXPRESSLY consented to

2. Domicile Domicile is like general jurisdiction which also applies to corporations (Rule

1332 says domicile of corporations = principal place of business or where incorporated). Permanent establishment + intent to stay

i. Mas v. Perry1. Domicile= the place of “his true, fixed, and permanent

home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.”

2. Residency is not enough –need intention aspectii. Milliken v. Meyer-domicile rule

1. Domicile alone is enough to exercise jurisdiction over someone

3. Physical Presence Quasi in rem jurisdiction-still must be viewed under international shoe

o Harris v. Balk-overturned below Quasi in rem jurisdiction Jurisdiction over the property, not the person of balk

Applying the rule that the debt follows the debtor, wherever Harris is located is whether the debt of balk is located, and is owed to Epstein

Shaffer v. Heitnero We still have to look at due process when quasi in remo No quasi in rem or in rem jurisdiction would be constitutional if

the international shoe concepts were not applied-contacts must be sufficient to satisfy international shoe

o Quasi in rem juris may be used only if the person whose property is attached and th state is sufficient to satisfy the min contacts test of international show

o The test here does not deal with person jurisdiction, contacts between defendant and forum satisfies international shoe Every state decides what constitutes sufficient contacts to

exercise jurisdiction Long arm statute

o Shaffer v. heitner addresses physical presence of property of a person but says that is it not fair on it’s own (overturns Harris v. Balk)

McArthuro Physical presence, no matter how transient is sufficient o Physical presence is sufficient if non-resident is present without any

affiliating circumstances o If he were absent we would need to look at international shoe

Burnham-upholds McArthuro Non-resident who is personally served with process while

temporarily in that state is subject to jurisdiction by the state court in a suit unrelated to his/her activities in the state

ii. Modern Basis 1. Minimum Contacts-Cases

a. International Shoei. Does the defendant have such minimum contacts so that would

justify the exercise of jurisdiction in personam so as to no comport with traditional notions of fair play and substantial justice

1. Continuous and systematic activity a. Perkins v. Benguet-also deals with systematic

and continuous (only general jurisdiction case; acts like a duck)

b. Hanson v. Dencklai. Was the contact purposeful

ii. The contacts were brought about for the unilateral activity of the party and was not found to be purposeful

c. Hawkins v. Mcgeei. Although one contact, because D initiated contact it may be

substantial enough to allow jurisdiction ii. In both international shoe and mcgee, the direction of

solicitation was on the part of the defendant and it displays purposeful availment although the contact is very different

d. WWVWi. We used to rely on foreseeability of being sued in the past

cases, and this may have loomed much larger than courts intended

ii. We will give the question of foreseeability to the plaintiff and although relevant, foreseeability BY ITSELF IS NOT ENOUGH, there must be something else

iii. The courts were trying too hard to find jurisdiction iv. No interest of state of Oklahoma to litigate against NY

defendant and provide forumv. Justice doesn’t demand exercise of jurisdiction

e. Asahi i. Substantial amount of product of foreign defendant comes into

CA ii. We would normally require much more of a contact

iii. CA does not have an interest in hosting a case involving a Japanese v. Taiwanese company even though cause of action in CA

2.a. Minimum Contacts Test –International Shoe

1. Did the cause of action arise in the forum (contacts arise from cause of action)?

2. What is the quality nature of the contacts?o General substantial contacts-Milliken v. Meyero Systematic and continuous-general jurisdiction-Perkins v.

Bengueto Continuous but limited- Burger Kingo One substantial –Hawkins v. McGee

The Shoe Spectrum: General Decreasing contacts Increasing contacts | no casual or single, related continuous | substantial contacts isolated act but limited | or pervasive |_____|_________|__________|_____________|________|________|_____| no no specific specific | general

jurisdiction jurisdiction jurisdiction jurisdiction

3. Did D purposefully avail themselves to the laws of the forum state?

o Direction of solicitation is by D Hawkins v. McGee, International Shoe, Hanson v.

Denckla--(not directed toward forum)o Is the exercise of jurisdiction over D foreseeable enough so

as to give the forum state an interest is hearing the case? –mere foreseeability is not enough on its own

Alludes to purposeful availment and intent of parties to involve selves in the forum state

Stream of commerce-foreseeability in corporations WWVW, Asahi

4. Would it comport with traditional notions of fair play and substantial justice to exercise jurisdiction over the defendant?

o Burden on defendanto Interest of forum state o Plaintiffs interest in obtaining conven and effec relief o Interstate judicial interest in efficient resolution and

substantive social policies o International Shoe o Buckeye Boiler-couldn’t find jurisdiction at first but

because of risk of inconsistent judgments/necessity of needing to litigate and compensate P, exercise of jurisdiction is granted (balanced against non convenience and contacts)

3. Long-Arm Statutes Each state has own statute to permit service of process over non-

residents Bensusan-Before we look at minimum contacts, jurisdiction must first

comply with the forum state’s long arm statute o if minimum contacts violate long arm statute then there is no

jurisdiction Omni Capital v. Rudolf-state long arm statute or congressional

authority authorizes service of process

c. Service of Process Proper service of process must be served to a defendant in order for jurisdiction to

be exercised over their person. Even if personal/subject-matter jurisdiction exists, without correct service of process this is irrelevant

There are state statutes and federal rules relating to service of processo Rule 4 (see above)o Rule 12 deals with proper responsive pleading/trial motion by defendant o Rule 2361 for interpleaders

Rule 4(k)(1)(c) and 2361- You get nationwide service of process (as long as these people are anywhere in the U.S., there is jx over their person)-STATUTORY IMPLEADERS ONLY

Rule 4(k)(1)(c) + state long arm statute-proper service of process Rule interpleaders, and normal service of process in general

o

d.Venue 1391 + 1404 (a) for forum non conveniens

o 1404(a) allows transfer of one District Court to another as long as we are

doing it in the interest of justice and for the convenience of the parties so long as the action could have originally been filed there

we look at 1391 to see if proper venue o if convenient and justice served we will allow the

transfer o Piper-speaks to convenience for choosing venue o Van Dusen-It is the law of the transferor forum that should follow the case

should it be transferred, so long as the motion is defendant initiated

o Ferens v. John Deere-partially upholds VanDusen Transferee court must apply the substantive law (i.e. statute of

limitations) of the transferor court regardless of whether the transfer was made by the plaintiff or by the defendant

Entire justice system will benefit from this If it is more convenient, we can disregard the idea of forum shopping

o Based on common law idea of Forum Non Conveniens-we can transfer based on convenience so long as transferee venue and jurisdiction are proper (see 1391 or 1397 to see what is proper)

1406 –improper venue (challenged under 12(b)(3))o (a)can either dismiss or transfer to appropriate venueo As opposed to 1404, law of transferee forum applies for 1406 transferso (b) if objection not made in reasonable time then court may litigate in

current venue?o NOTE: If court must be transferred for improper venue, you MUST us 1406-

not 1404 1391 classifies venues generally

o proper place of residence of the D, where a significant amount of events happened, residence of any person involved in the litigation

1397-proper venue for interpleaders= in place of residence of any one of adverse parties

e. Removal 1441- Any case that could have originally been filed in federal court can be removed

there o 1441 (a)

Federal defense or counter claim that brings up a federal question is not sufficient for removal, it must arise on the face of the complaint (1441(a))

o 1441(b) action that is removable solely on the basis of diversity (1332) may

not be removed if any parties in interest properly joined as defendants is a citizen of the state in which such action is brought-aka cant remove away from where the D is if we are already there

o Caterpillar v. Williams- federal question at issue but does not appear on the face of the

complaint but cam up as federal defense cant have federal defense for use as a basis of removal

o pre-emption if federal claim as a defense to a state claim is extremely

extraordinary, it may pre-empt the state claim and the case can be removed

f. Waiveri. Different ways in which parties may waive their rights or their immunity

1. Aka foreign sovereigns usually immune to litigation unless waive their right through entering into commerce, etc. (1330)

2. 12(g)-bar against serial 12(b) motion defenses. Once any12(b) asserted at pre-trial motion, responsive pleading, or trial, then, any 2-5 become barred/waived for rest of litigation

3. there are express waivers-aka defendant waiving service of summons in complicated situations, or express consent to personal jurisdiction cases (Carnival Cruise Lines)

II. Erie-we want to know whether the federal government had any interest in hearing the case constitutionally

o A. Erie Caseso ERIE v. TOMPKINS

o If no federal interest, there can be no federal law on pointo Two questions to ask

Isolating the question, the federal court looks and finds about there is no federal law in that question-is there any federal law on point?

CAN there be any federal law on point? Found to be NO in Erie, law of state applied

o GUARANTY TRUST v. YORKo It is the law of the state in diversity cases that should govern the law with

regard to substantive law because federal courts should have the same outcome as state courts

o No federal law on point o Limitations on actions

Outcome determinative test Outcome must be determined according to the laws of the state

o Found statute of limitations to be more likely than not to be substantive o REAGAN

o Any rule of procedure can have substantive impact o Statute of limitations: battle between Rule 3 and state statute of limitations

Rule 3 is on point but it CANNOT apply We should use state law We recognize that even though there is a federal law on point, there

CANNOT be a federal law on point here It is applicable ant not intended to control this issue Beyond the scope of rule enabling legislation

o SEABOCK v. WILSONo When evaluating FRCP on point we must see if whether it regulates more

than procedure o If rule 35 regulates more than procedure it violates the rule enabling act and

is therefore unconstitutional o Rule: A rule is procedural if indeed it governs procedureo Rule 35 was found constitutional?

o PALMER v. HOFFMANo State law puts case in plaintiff’s corner for negligence yet Rule 8© seems to

place this burden of contributory negligence in the defendant’s corner by raising a defense

o We are going o keep rule 8© procedural because a defendant has to plead it but it does not relieve the plaintiff from having to prove they were not contributorily negligent

o Court is saying that however you read rule 8© it cannot be seen as so broad as to relieve the plaintiff o the burden of proving

o Like in REAGEN, it looks like the rule may be applied on its face yet if we apply it, it is going to have an effect on our outcome

If we view outcome determinative as anything having an impact on the outcome, then we must take state law

The rule is NOT invalid it just doesn’t apply It usually just applies with problems of federal law, not

problems of the state o BYRD v. BLUERIDGE

o If there is a federal law that is directly on point, there really is no balancing test to be applied because it applies it as written

o Conflict of common law, then the court can decide for itself whether federal interests trump those of the state

o HANNA v. PLUMERo We recognize that application of federal law will have a direct effect on the

outcome o We look at state statute of limitations and see what is needed to toll ito We come out in favor of federal law o We understood that in Reagan the court found a federal interest in that point,

yet here we change our question by finding how to toll statute of limitations by serving process properly

How do you properly serve with process There is conflict of law between federal and state law on this

point We find that there is more of a federal interest in this Could we have said that the federal law is inapplicable,

theoretically yes, but it seems to be a head on rule that applies The outcome is determined by federal law irrespective of the

impact of the outcome o We apply federal law because of the clear federal law and interest even

though it seems clear that there would be an impact on outcome o We can distinguish this case because courts have found a legitimate federal

interest, where all preceding cases they didn’t o We apply outcome determination with the twin aims of Erie in mind

Forum shopping We don’t find a big issue with forum shopping in this case

Uniformity o GASPERINI

o The state has interest with respect to the substantive question and federal has the interest with respect to the procedural aspect

o So this is an interest analysiso Holding: state law?

o SEMTEKo Dealing with res judicata and statute of limitations o Does the federal government have the authority under the constitution to

enforce the consequences of the statute of limitations?o No, this is a state interest

o Federal courts would have very little interest in applying this issue that has a state interest

B. Attack on Erieo (see attached charts)

C. Reverse Erie

III. Joindera. Joinder of claims

Rule 18-(see above)o Many claims may be joined against an opposing party o Note that after bringing in crossclaims, counterclaims, etc. that must be

related to case or controversy you can then attach unrelated claims to those with 18

o ALSO: we can join several unrelated clams under 18-yet of these claims are state+ federal then state claims needed to be related to cause of action in order for 1367 to bring them in

SO these unrelated claims are barred unless we have some independent basis for jx for them

b.Joinder of parties –plaintiffs and defendants Rule 19-required joinder (see above)

1. Entire relief cannot be granted without joinder of parties2. Failure to join parties under 19= defense 12(b)(7)

a. 19 is the requirement and 12 is objection to party who fails to meet requirement

Rule 20-permissive joinder (see above) 1. (a) Cause of action and relief is related to party to be joined so they be added 2. Plaintiffs may be joined against multiple defendants so long as arises out of

same issue 3. Joinder is usually joining parties that are liable for the same thing or different

things, but in no way is there a 3rd party D liable to another D. In Rule 14-impleaders (see above)

1. D may join someone under 14(a) who may be liable to 3rd party plaintiffa. Need relation between 3rd party D and 3rd party Pb. Important!!!: D must be able to say, “if I am liable to the P, then the

third party is liable to me”c. MUCH different than joinderd. If there is a belief + some evidence that other party is liable then he

probably cant be impleaded; however if the party asserting impleader isn’t sure who is liable-a maybe situation-then we probably can use impleader to bring in a third party D

IV. Res Judicata-notions of bar and merger o Three factors

o Earlier judgment is valid and considered a judgment on the merits o The cases are between the same partieso The same cause of action is involved in the later lawsuit

o Federated Department Stores v. Moitie-“a final judgment on the merits of an action precludes the parties of their privies from relitigating issues that were or could have been raised in that action”

o Re s judicata is not altered by the fact that judgment may have been wrong or subsequently overturned –even to “uphold justice”. It is more important to uphold tradition of res judicata to uphold justice

o The parties time to appeal had passed so they try to use collateral attack; direct attack= appealing

o Past rulings are not determinative, just suggestiveo Collateral estoppel/issue preclusion

o Is there an identical issue?o Was the final judgment in the first case on the merits?o Is the person against whom collateral estoppel asserted a party to the first action

or in privity?o EXAMPLE

o res judicata example: matt and I both in car when a cause of action occurs….case comes to judgment then matt cant come and bring in another claim with that same cause of action aka he cant be like your negligence happened here and then also in a different suit say D fucked up our tire

o Issue preclusion: matt lost on the negligence claim for the car accident, I cant come sue D for negligence too because same thing

o Claim preclusion (more notes on res judicata + examples)o Doctrine of bar and merger o Hypo

P v. Djudgment for P Cause of action is MERGED In the judgment and any further litigation on

this cause of action is barred by res judicata Doctrine of bar and merger= claim is precluded from further litigation

because it is res judicata o Res judicata works with respect to claims that were:

o 1) litigated ORo 2) should have been litigated but were not

i.e. 13(a) compulsory counterclaim

i.e. P v. D 1331 federal cause of action P v. D also has a state cause of action that arises from same event

that gave rise to 1331 claim If the federal and the state claim arose from the same issue then

we can say that if P FAILED to file state claim at time of federal claim then he essentially split his cause of action

He should have litigated but he didn’t so it is res judicata He may argue that he couldn’t because it was a state claim,

however, he definitely could of under 1367 so he unfortunately split his cause of action here

i.e. P 1 and P 2 (joinder properly under 20) v. D -> motion for D There is a judgment for D on 12(b)(6) P 1 appeals and P 2 doesn’t

So appellate court concludes that P1 has set forth a claim for which res can be granted so it may move forward

P2 sees this and is like oh I want to appeal to theno May be do this? NO, if time for appeal is goneo Everyone entitled to day in court, but he did not take this

opportunity…he let the judgment become final o You can always appeal within time and possibly get the

judgment reversed Federal Department Store v. Montie

*NOTE: 12(b)(6) is considered a judgment on the merits o which are judgments are not on the merits??

o Collateral Estoppel-person is estopped from relitigating in a collateral lawsuit- this is an extension of the res judicata effect but in collateral litigation

o Ie. 1. P1 v. D-> judgment for P->res judicata 2. P2 v. D (same case or controversy)

same issue from case 1 for negligence the person who I am trying to foreclose from action has already

been a party to this case? So has not further right to litigate this issue. IF lawsuit 1 is collateral to 2, in the way that they already had opportunity to litigate, then he should be estopped from doing so now

Look at o 1) same issue

it is considered same issue if: (a) important or central to first litigation (b) was actually litigated AND

o If the case is NOT litigated but just responded to then it is not barred by collateral estoppel???

An admission is not considered litigated

(c)was decidedo 2) final judgment given on the meritso 3) same party

Rule 12 Every defense must be set forth in a responsive pleading EXCEPT the following 7 may be at the wish

of the pleader set forth by motion without pleading MUST BE DONE BEFORE YOU ACTUALLY PLEAD. If no responsive pleading allowed/required

then can be asserted at trial 12(g) is a bar against serial motions

defenses may be waived by failure to include in a pre-answer motion o RULE (2)-(5)o If no pre-answer motion then don’t have to worry about 12(g) o Whenever raising one motion, have to say ALL of them at same time-2-5. 1,6,7

can be asserted at any time. Yet, if 1,6,7 made before then 2-5 must be brought then as well (12(g))o (1) subject-matter jurisdiction

always preserved by 12(h)(3), says case must be dismissed if lacking

only motion that may be raised by the court or by a partyo (2) personal jurisdiction

12(h)(1) preserves a dismissal because of lack of personal jurisdiction not having been preserved, then may not raise 12(b)(2) by motion

because barred by 12(g) o (3) improper venue

case may be dismissed or transferred under statute 1406 (cures improper venue)

o the law of the transferor forum only applies to 1404(a) trasfers, not 1406

1406 transfers applies law of the new forum?o (4) insufficient processo (5) insufficient service of processo (6) failure to state a claim upon which relief can be granted –i.e. statute of

limitations, summary judgment, etc. 12(h)(2) see more in “Pleadings” below (Access Now)

If P cant show they are entitled to recover in pleadings, then 12(b)(6) dismisses case

o (7) failure to join a party under Rule 19 12(h)(2)

12(g) is a bar against serial motions-if it was available to have been brought before, then it should have been (unless the ones preserved by 12(h)

12(h)(1) waives 12(b)(2-5)-if question is asking what is waived then look to this rule!!!!

WHEN TO RAISE 12o If NO 12’s raised in pre-answer motion, then any may be asserted in

responsive pleading. Once asserted 12(b)(2-5) are waived. NOTE: if make responsive pleading without putting in a 12 and there is NO pre-answer motion with a 12 then you may amend the responsive pleading within the statutory time (21 days) to include the 12

12(e)-with regard to pleadings- wants more concise and direct statement (look at exact words in the rule)

o 12(b)(6) is not AN OPTION HERE UNDER 12(e)-we can only strike, etc. this means your motion hasn’t been plead he has a claim that D understands but however he doesn’t know how

to answer he shoud have brought 12(b0)(6) in first place if he didn’t see a claim 12(b)(6) and e CANNOT GO TOGETHER because e in and of itself says

that you understand the claim but want to be more definite