I.

Personal Jurisdiction – PJ – determines where courts can enter a judgment binding on the
defendant
A. In Personam – power over defendant herself, not property (PREFERABLE)
General – defendant can be sued in the forum for a claim that arose anywhere in the world,
when contacts are so substantial and of such a nature as to justify suit against the defendant on
causes of action arising from dealings entirely distinct from those activities
a) If CA has general juris. over you then you can be sued for a claim that arose in FL.
Specific – defendant is sued for a claim that arises in the forum; relatedness.
Minimum Contacts? Related to claim? Reasonable form of notice?
a) Does this claim asserted by the plaintiff arise from what the defendant did in the forum?
1. Constitutional Limit (analysis)
a) Pennoyer v. Neff – traditional basis (defendant must be within forum) Oregon state court
lacked PJ to enter an enforceable judgment against Neff because he was neither
personally served with process in the state (In Personam) nor was his property attached
prior to the initiation of the lawsuit (In Rem).
1 Defendant is served with process in the forum – presence – General juris.
2 Service on the defendants agent within the forum
3 defendant is domiciled in the forum – General
4 defendant consents to jurisdiction
b) Hess v. Pawloski – history
1 Mass man could sue the Penn man because of state statute – if you drive into our
state you are consenting to in personam jurisdiction, and you appoint a state official
for your service. Legal fiction, consistent with Pennoyer
c) International Shoe v. Washington – new formula, restate principles.
1 There is jurisdiction if the defendant has such minimum contacts with the forum so
that jurisdiction does not offend traditional notions of fair play and substantial
justice
 if the defendant is not present in the forum
2 You can serve process outside the forum
3 Two parts – contact and fairness
4 Nowhere does this overrule Pennoyer, along side it – recognizes general and specific
d) McGee v. International Life Insurance Co. – upheld jurisdiction in CA over a TX
company, insurance. The Due Process Clause did not preclude a California court from
entering a binding judgment on a Texas insurance company because:
1 The suit was based on a contract that had a substantial connection with the state
2 No contention that the defendant did not have adequate notice of the suit or
sufficient time to defend itself
3 Texas company solicited the business, please buy this insurance
4 California had an interest in providing effective means of justice for its residents
e) Hanson v. Denckla – woman gets insurance and goes to FL. Although Donner received
trust income and carried on some trust administration in Florida, the trust company did
not have minimum contacts with Florida
1 under Shoe the contact between the defendant and forum must result from the
defendant purposeful availment – defendant must reach out to the forum and avail
itself of the privilege of conducting activities within the forum state, thus invoking
the benefits and protections of its laws
f) Worldwide Volkswagon Corp. v. Woodson – 1980 U.S. Case. Buy car in NY to move to
Ariz., in OK had a bad car wreck, sued in OK alleging car defect. Two defendants are
NY res. No jurisdiction in OK over the NY defendants. No purposeful availment, they
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 didnt reach out to OK.
1 Foreseeability – must be foreseeable that the defendant could get sued in the forum
state
2 Defendant must purposefully avail itself of the privilege of conducting activites in
the forum state or delivers its products into the stream of commerce with the
expectation that they will be purchased by consumers in the forum state
g) Burger King – contract case in FL, BK sued two little guys from Mich. in FL. Court
makes it clear that International Shoe has two parts (Contacts & Fairness; assess
contact first – no relevant contact? then no jurisdiction).
1 The little guys reached out to FL to become franchisee, they are little guys so it isn't
fair to travel to FL. Supreme court said tough. Burden is on the defendant to show
that the forum is so gravely inconvenient that you are at a severe disadvantage –
almost impossible to show, relevant wealth doesn't matter. Due process doesn't
guarantee a good forum.
2 Minimum Contacts: provide individuals with fair warning that their activities within
a forum may subject them to suit there. This fair warning requirement is satisfied if
the defendant has “Purposefully Directed” his activities at residents of the forum and
the litigation results from alleged injuries that “Arise Out of or Relate to” those
activities.
3 Fair Play and Substantial Justice: Whether the contacts comport with “Fair Play and
Substantial Justice”. Reasonableness of jurisdiction upon a lesser showing of
minimum contacts that would otherwise be required.
h) Asahi Metal Industry – first stream of commerce case – State A manufacturer sells
product to State B who then puts it in his product who then sells to State C, D, and E.
Does State A have a relevant contact with State C, D and E? Split 4-4
1 Minimum Contacts:
 Brennen Theory – It is a contact if I put the product in the stream of commerce
and can reasonably anticipate that it will get to State C, D, and E.
 O'Connor Theory – You need Brennan plus some intent to serve State C, D, and
E. (advertise there, customer service there?)
2 Fair Play and Substantial Justice:
 Burden on Defendant
 Interests of Forum State
 Interests of Plaintiff
 Interests of Federal System (especially foreign nations)
3 PJ in this case would violate traditional notions of fair play and substantial justice
because the exercise of jurisdiction would be unreasonable, even if minimum
contacts existed.
i) Macintyre – 2011 Supreme Court case – English company manufactures huge metal
cutting machines and only sell to Ohio distributor who then sells to other states. Plaintiff
in NJ gets injured, tries to sue the English Company in NJ. Split 4-3 NJ courts could not
exercise PJ over an English manufacturer that neither marketed goods in the state nor
shipped them there.
1 Kennedy (4) – Adopt O'Connor theory – no intent to sell to NJ (power stemming
from traditional practice)
2 Brier (2) – Dont take sides, adopts both
3 Ginsburg (3) – Consistent with Brennan, target the U.S. You can be sued in any
state. (Fairness and reasoning)

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  Argue BOTH theories. What does your prof. Think?
j) Burnham v. Superior Court – 1990 – NJ citizen sued in CA, served with process in CA.
Lawsuit doesn't relate to CA (claim that arose outside of CA) Do the traditional basis
exist along side. California courts may exercise PJ over a non-resident who was
personally served with process while temporarily in the state. (Tag Jurisdiction)
1 Bright Line Rule – Jurisdiction over physically present people
2 Case-by-Case Inquiry – voluntarily present in the state, ok. Undertake an
independent inquiry into the fairness of the prevailing in-state service rule
k) International Shoe? Split 4–4
1 Scalia (4) – presence when served, is o.k. by itself! You don't have to go through
International Shoe (4 traditional is alternative to International Shoe)
2 Brennan (4) – always apply International Shoe
l) Goodyear Dunlop Tires – (Unanimous) General Jurisdiction is o.k. Only in states where
the defendant is essentially at home. Foreign subsidiaries of Goodyear were not subject
to general jurisdiction in NC because their attenuated connections to the state fall short
of the “continuous and systematic general business contacts” necessary to empower NC
to entertain suit against them on claims unrelated to anything that connects them to the
state.
1 Human – Domicile
2 Corporation – state of Incorporation or principle place of business
 cannot be based on buying and selling in the state
3 Does it go beyond this?
m) Pavlovich v. Superior Court – exercise of PJ over defendant in California would violate
due process because his website was neither interactive nor specifically targeted toward
the forum and he lacked knowledge that his activities would cause concrete harm within
the state
1 Calders Effect Test -
2 Sliding Scale Test –
n) Perkins v. Benguet Consolidated Mining Co. – mining company from the Philippines
was subject to general jurisdiction in Ohio because the company’s president, general
manager, and principal stockholder ran the business from Ohio during the war, moving
the principal place of business to Ohio.
o) Helicopteros Nacionales de Columbia – a helicopter transport company from Columbia
was not subject to general jurisdiction in Texas because its contacts with the state did not
constitute the kind of continuous and systematic general business contacts that are
sufficient to establish general jurisdiction.
p) Carnival Cruise Lines v. Shute – “Fundamental Fairness” did not preclude the
enforcement of a forum selection clause contained in tickets issues by a cruise line to its
passengers when there was no bad faith, fraud, or overreaching (FL v. the moon) and
plaintiffs essentially conceded that they had notice of the clause.
q) Does a traditional basis apply?
1 Traditional basis by itself may be enough or not (Burnham split)
2 No – International Shoe
 Must be relevant contact between the defendant and the forum!
1 Purposeful availment – Defendant must reach out to the forum
2 Foreseeable that the defendant can be sued there – not that the product will
get there, but that you could be sued there
 Specific or General Jurisdiction

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 1 Relatedness – does the plaintiff’s claim arise from the defendants contact
with the forum? Yes → specific jurisdiction (McGee); No → only o.k. If
there is General Jurisdiction
2 General Jurisdiction → Is the defendant essentially at home in the forum?
 Fairness - Is it fair to litigate? (5 factors, not exclusive; burden is on the
defendants to show that it is unconstitutional inconvenient)
1 Inconvenient for the Defendant – Burger King
2 Forum states interest – McGee
3 Plaintiffs interest
4 Efficiency (rare)
5 Shared substantive policies – (rare)
2. Statutory Inquiries (must be a statute that allows PJ)
a) Every state has a series of PJ statutes – all allow based on traditional basis
b) Non-resident Motorist act – Hess – Specific Jurisdiction
c) Long Arm – (non residents)
1 California Type – (too easy) We have jurisdiction to the full extent of the
constitution
2 Laundry List Long Arm – list things that non-residents can be sued for in the forum
 Can be interpreted differently by different courts
 ex. commission of a tort
3. How to go through a question
a) Is there a long arm statute?
1 Maryland Long Arm statute might say we have jurisdiction over nonresidents who
commit a tort in Maryland? Some courts say yes the tort is where the injury occurs.
Some courts say no, the tort is where the thing is made.
b) Would jurisdiction be Constitutional in Maryland? (International Shoe, Worldwide
Volkswagon, McGee)
1 Is there a relevant contact between defendant and forum?
 Did the defendant purposefully avail himself to maryland?
2 Foreseeable?
3 Relatedness? Specific v. General
4 Fairness? Fair play and substantial justice? 5 factors – burden is on the defendant
B. In Rem / Quasi In Rem – over defendants property
1. In rem – dispute/litigation is about who owns the property
2. QIR – Dispute has nothing to do with the ownership of the property
a) Pennoyer – In Rem/QIR is okay if the property is attached at the outset/beginning of the
case, have court seize the property at the beginning
b) Must have an attachment statute – we can seize property the defendant owns or claims
to own.
c) Shaffer v. Heitner – constitutional test – seizing property at the outset is not enough,
defendant must meet international shoe.
1 Delaware Court’s exercise of QIR jurisdiction violated due process because
defendants did not have minimum contacts with state. All assertions of state court
jurisdiction must be evaluated according to the International Shoe Standard.
II. Notice – have to give notice and a chance to be heard
A. Service of Process – FRCP 4
1. Process consists of (1) summons (4(a)(1)) and (2) copy of complaint
2. Service can be made by any nonparty, who is at least 18. (4(c)(2))

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 3. How do we serve an individual
a) 4(e)(2) –
1 Personal service – walk up to the person and hand the papers to them;
2 Substituted service – must be at the defendants dwelling or usual abode and you
must serve someone of suitable age and discretion who resides there;
3 Service on defendants agent – appointed by law, contract, or some other method
b) 4(e)(1) – methods that are allowed by state law
4. Service on a business
a) 4(h)(1) – an officer or managing or general agent (sufficient responsibility that you
expect them to transmit important papers)
5. Waiver of service 4(d) – waiver by mail, first class mail 2 copies of waiver of formal service
(if defendant does not send back the waiver form, plaintiff will serve process on defendant
and she will have pay for it if no good reason)
B. Constitutional Standard
1. Mullane v. Central Hanover Bank – Constitutional test – Notice must be reasonably
calculated under all the circumstances to apprise the party of the proceeding and afford them
an opportunity to present their objections (Notice by publication of the peoples trust funds
they were managing) Lots of people, notice by publication is ok, 1 person not ok because
they might not see it.
2. Jones v. Flowers (2006) – if you become aware that the defendant has not been served, you
may have to try other steps
III. Subject Matter Jurisdiction – SMJ – State court or Federal Court (limited jurisdiction)
A. Diversity of Citizenship §1332(a)(1)
1. The case is between citizens of different states
a) Complete Diversity Rule – no diversity if any plaintiff is a citizen of the same state as
any of the defendants
Plaintiff Defendant Diversity?
Mass. Mass No
Mass. NY Yes
Mass. NY; NY; NY; NY; NY; Mass. No
b) Citizenship of a human being? (Natural Person) – for U.S. Citizen, citizen of a state
where domiciled. Only have one domicile at a time and you always have one. Establish
a domicile –
1 physically be there
2 form the intent to make it your permanent home
 Hawkins v. Masters – federal district court granted defendants motion to dismiss
for lack of SMJ because the decedent was a citizen of Kansas at the time of his
death
1 Physical presence
2 Intent to remain
 Redner v. Sanders – no diversity of citizenship. Plaintiff was neither a citizen of
France nor a citizen of California
 Saadeh v. Farouki – held there was no diversity over a lawsuit between a citizen
of Greece and a citizen of Jordan who was residing permanently in Maryland
and became a U.S. citizen while the case was pending. Would be contrary to the
purpose of narrowing diversity jurisdiction and would raise constitutional
difficulties.

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 c) Citizenship of a corporation? Defined by §1332(c)(1) – corporation is a citizen in the
state where incorporated and the one state where it has its principle place of business
(PPB) (can have two citizenships) Supreme court has made it clear where PPB is
through Hertz – PPB is where the managers direct, control, and coordinate the corporate
activities. “Nerve Center” usually the HQ.
d) Citizenship of a non-incorporated business (LLC, Partnerships) – no statute on this.
Look to the citizenships of all the members.
1 ex. partnership with 15 different members who are citizens of 15 different states,
could be citizen of every state.
2. Amount in controversy
a) Must exceed $75,000 (75,000.01)
b) Plaintiffs claim governs unless it is clear to a legal certainty that she cannot recover
more than 75,000.
c) Aggregation – add two or more claims to get over 75,000 – we aggregate the plaintiffs
claim if there is one plaintiff against one defendant, don't have to be related. Cannot
aggregate if there are multiple parties on either side
d) Joint claim – use the total value of the claim and the number of parties is irrelevant.
B. Federal Question (FQ) §1331 – Citizenship irrelevant and no amount in controversy
1. Claim must arise under federal law, look only at the complaint and the plaintiffs claim
itself
a) Louisville v. Mottley – free lifetime passes on a RR, congress passes a law that the RR
can't give out free passes for RR, Motley's sue the RR, in their complaint they say (1)
you are breaching in the contract, (2) the new federal law does not apply to us
1 Well pleaded complaint rule – look only at the claim → Is the plaintiff enforcing a
federal right? Yes → federal court for FQ; No → not a FQ
2 Is the plaintiff enforcing a right under federal law? No, the federal law says that the
RR can't give the passes, not that they can't use them.
C. Supplemental Jurisdiction §1367
1. for every claim in federal court there must be federal SMJ, every claim you see assess it for
diversity and FQ. If the claim does not meet FQ or diversity → try supplemental jurisdiction
2. lets a federal court hear a non-diversity, non-FQ
3. United Mine Workers v. Gibbs – plaintiff sued for two claims, one was a federal claim, one
was a state claim.
Claim 1 P → Federal Claim D Federal Claim? Yes, federal law
(TN) (TN)
Claim 2 P → State Law D Federal Claim? No, state law.
(TN) (TN) Diversity? No, TN v. TN
a) Supplemental jurisdiction is ok if both claims “share a common nucleus of operative
fact” - same overall dispute. Gibbs is always met if the claims arise from the same
transaction or occurrence (T/O) (compulsory counterclaims always have supplemental
jurisdiction). Codified under §1367
b) In re Ameriquest Mortgage – state and federal claims were connected by common and
operative facts (inextricably intertwined) no compelling reason for the court to decline
to exercise supplemental jurisdiction
1 Must have more federal question than state
4. Supplemental Jurisdiction?
a) Does §1367(a) grant jurisdiction? Yes, if it meets Gibbs; share a common nucleus of
operative fact and arise from the same T/O.

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 b) Does §1367(b) take away that grant? APPLIES ONLY IN DIVERSITY CASES. Only
takes away jurisdiction over claims by the plaintiff.
D. Removal Jurisdiction – removal allows a defendant to have a case filed in state court
transferred to the federal court; state → federal. Remand – federal → state §§1441, 1446, 1447
1. Removable if the case meets federal SMJ (diversity or FQ) In state Defendant rule - you
cannot remove a diversity case if any defendant is a citizen of the forum state (only in
diversity case)
2. All defendants must agree
3. Must remove within 30 days of service
4. Remove only to the federal district that embraces the state court where it was filed
a) Caterpillar v. Lewis – district courts error in failing to remand a case improperly
removed is not fatal to the ensuing adjudication if federal jurisdictional requirements are
met at the time judgment is entered
1 Once a diversity case has been tried in federal court, with rules of decision supplied
by state law under the Erie doctrine, considerations of finality, efficiency, and
economy become overwhelming.
IV.Venue
A. Basis Provisions – §1391(a)(choices in diversity cases)-(b)(choices in diversity cases)
1. lay venue in any district where all defendants reside (reside in the district where
domiciled; businesses reside §1391(c) in all districts where they are subject to PJ)
a) if all defendants reside in the same state, you can lay venue where any of them reside
2. lay venue in any district where a substantial part of the claim arose
3. §1391(a)(3) or 1391(b)(3) – no district in the U.S. that meets one of the two other cases.
4. State –
a) Where the plaintiff resides;
b) Where the defendant resides;
c) Where the plaintiff or the defendant does business;
d) Where the claim arose
5. Federal – U.S.C. § 1391
a) Action on diversity only –
1 Judicial district where any defendant resides, if they all live in the same state
2 Judicial district in which a substantial part of the claim occurred
3 Judicial district where the property in the claim is
4 Judicial district in which the defendants are subject to PJ
b) Action not only on diversity – (Federal Q)
1 Judicial district where any defendant resides if all defendants live in the same state.
2 Judicial district in which a substantial part of the events/property of the claim are.
3 Judicial district where any defendant is if none of the above apply.
c) An alien may be sued in any district
B. Transfer of Venue – moving a case within a judicial system (state to state, federal to federal) –
the original federal court is the transferor the receiving court is transferee. Discretionary up to
the judge.
1. IN BOTH, THE TRANSFEREE MUST BE A PROPER VENUE & HAVE PJ OVER THE
DEFENDANT, must be independently true without waiver by defendant.
2. §1404 – applies when the transferor is a proper venue transfer based on convenience for
parties and witnesses and the interest of justice (looking for the center of gravity based on
public and private factors
3. §1406 – applies when the transferor is an improper venue. Judge can transfer or dismiss
C. Forum Non-Convenience – where court dismisses because there is another court that makes
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 more sense. You cannot transfer to another judicial system. (Kansas → alabama = no!; usually
for foreign countries)
1. Piper Aircraft v. Reno – plane crash in scotland everyone was Scottish, but the plane was
made in U.S., said they should dismiss under forum non-convenience (private v. public
factors footnote 6)
2. Factors – center of gravity, where does this litigation belong?
V. Erie Doctrine -
A. federal court under diversity, judge must decide some issue and the question is must she apply
state law?
B. Hanna v. Plummer –
1. (Hanna) – is there a federal law (FRCP, §, any law, usually FRCP for exam) on point that
directly conflicts with state law? Yes? Apply federal law as long as it is valid. Is it valid?
FRCP test validity under the Rules Enabling Act (REA §2072)(Shady Grove) Rule is
arguably procedural v. intrudes into state policy? (see what prof. Thinks)(no FRCP has ever
been invalidated)
2. (Erie) – What if there is no federal law on point, does the federal judge have to follow state
law? Matter of substance → federal judge must follow state law.
a) Outcome Determinative Test – Guaranty Trust – under state statute of limitations the
case was barred, if he filed in state it would be dismissed so he filed in federal, that
judge wants to allow it, can he ignore the statute of limitations? No, it is substantive
because it is outcome determinative, if you apply state law the case would be dismissed,
if you ignore state law the case goes forward; creates a different outcome.
b) Balance the interest – Byrd – state law says that a particular issue is decided by ajudge
not a jury, goes into federal court and the judge wants to let the jury decide, can the
federal judge ignore state law? If something is not clearly substantive, we ordinarily
follow the state law unless the federal court system has an interest in doing it differently,
weigh the interest of the federal and state law system. Importance of the federal practice
outweighed the likelihood of a different result in state court
c) Twin aims of erie – Hanna – Avoid (1) forum shopping and the (2) inequitable
administration of the law → Ask “If the federal judge ignores the state law, will it
cause parties to flock to federal court?” Yes → no, unfair to instate people.
d) STEP #1: Decide whether the Erie doctrine applies to this court. TEST: Is the case being
decided by a federal court? If not, the Erie doctrine is irrelevant. If so:

e) STEP #2: Decide whether the Erie doctrine applies to the case. TEST: Is the federal
court deciding a state-law claim? If not, the Erie doctrine does not apply. If so:

f) STEP #3: Decide whether the issue is substantive or procedural. TEST: Is the issue
outcome determinative, as judged from the perspective of a plaintiff deciding where to
file the lawsuit? If so, then the issue is substantive for Erie purposes and the federal
court must apply state law. If not, then the issue is procedural, and the federal court will
follow federal law

3. Hypo – State X legislature is concerned about health care cost, its says that if you sue for
medical malpractice. The claim must be submitted to arbitration. Plaintiff wants to go to
jury so he files in federal court. Does the federal judge have to follow the arbitration rule?
a) Federal directive on point? No; go to erie
b) three test →

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 1 Outcome determinative? Not sure, maybe less money →
2 balance the interest? State has an enormous interest to drive down health care cost;
federal interest not huge → follow state law
3 twin aims? If they ignore state law, will it cause forum shopping? YES! Every
plaintiff will want to go to federal court, unfair to citizens of state X cause they can't
invoke diversity → follow state law
C. Erie – in diversity cases the federal judge must apple state substantive law. Element of a claim
is substantive; define when someone is liable to someone else. Man walking by the railroad trak
and was whacked by an open door.
1. required by the rules of decision act (RDA §1562)
2. required by the constitution (10th Amendment) – states retain powers not given to the federal
government.
VI. Pleadings
A. Complaint – filed by the plaintiff, starts the case. Rule 8(a)
1. statement of SMJ
2. short and plain statement of the claim (8(a)(2))
a) Twombly & Iqbal
1 Court will ignore conclusions of law
2 Plaintiff must plead facts supporting a plausible claim that could provide relief
 More likely than not that defendant is liable based on the well-pleaded facts, or
 Is there a significantly more plausible, alternate explanation
3 Court will use its own experience & commonsense to determine if claim is plausible
 allows a great discretion for the judge
b) 9(b) – allegations of fraud or mistake must be made with particularity
c) 9(g) – items of special damage (doesn't normally flow from an event) plead with
specificity
3. make a demand for relief (money, injunction)
4. Bell Atlantic Corp. v. Twombly – plaintiffs complaint did not state a claim for relief under §
1 of the Sherman Act because stating such a claim requires a complaint with enough factual
matter (taken as true) to suggest that an agreement was made (plausible factual allegations
are required)
5. Ashcroft v. Iqbal – to survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief that is plausible on its face.
6. Stradford v. Zurich Insurance Co. – defendants counterclaim failed to plead the
circumstances constituting fraud with sufficient particularity under rule 9(b) because it did
not specifically identify plaintiffs alleged lies, but the district court granted leave to amend
the pleading and concluded that defendants subsequently satisfied the requirements of the
rule
7. 8(a) – Notice Pleading
a) A Pleading which sets forth a claim for relief shall contain –
1 A short and plain statement of the grounds upon which the courts jurisdiction
depends, and
2 A short and plaint statement of the claim showing that the pleader is entitled to
relief, and
3 A demand for judgment for the relief the pleader seeks
b) Bell v. Novick Transfer Co. – Plaintiffs complaint sufficiently pled a cause of action in
federal court because rule 8 requires only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Defendant was not entitled to a “more

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 definite statement” under rule 12(e); defendant could obtain by interrogatories or other
discovery the facts upon which plaintiff based its allegations.
B. Defendant's Response – Rule 12 – when you get sued, you have a choice on how to respond;
must respond within 21 days of service (if not, run the risk of default). Respond by motion or
answer.
1. Motion – (not a pleading, the answer is a pleading) Request for the court to order something
a) 12(e) – motion for more definite statement, complaint is unintelligible
b) 12(f) – motion to strike, cut out things that don't belong in the pleading
c) 12(b) – 7 defenses to dismiss, can be raised either by motion or answer
1 SMJ – doesn't belong
2 PJ
3 Venue
4 insufficient process – problem with one document
5 insufficient service of process
6 failure to state a claim
7 failure to join an indispensable party (party under rule 19)
d) 12(g)-(h) – impose strict rules about waiver →
1 12(b)(2 – 5) – must be put in your first rule 12 response, or they are waived.
2 12(b)(6 & 7) – can be raised for the first time, anytime through trial
3 12(b)(1) – can be raised anytime in the case (beginning, end, appeal, anytime!) (No
SMJ then it is unconstitutional so no full faith and credit)
 HYPO – Plaintiff sues defendant, defendant within 21 days makes motion to
dismiss for 12(b)(5) insufficient service of process. Court says motion denied.
Defendant files another answer no PJ (12(b)(2)) and no venue (12(b)(3)),
however she waived those in her first response (just the 12(b)(5)).
C. Amendments to Pleadings
1. Beeck v. Aquaslide – The district court did not abuse its discretion by allowing the defendant
to amend its answer to deny manufacturing the slide and the plaintiff would not be unduly
prejudiced by the amendment.
a) Nor did the district court abuse its discretion by ordering a separate trial on the issue of
which corporation manufactured the slide because a separate trial would advance the
goals of efficiency and fairness
2. Moore v. Baker (Violation of Informed Consent/Negligence)
a) The district court did not abuse its discretion by denying the plaintiffs motion to amend
her complaint after the SoL had run on her negligence calim because that claim did not
arise out of the same conduct, transaction, or occurrence as the claims in her original
complaint.
3. Bonerb v. Richard – negligent maintenance/professional malpractice
a) The amended complaint arose out of the same conduct, transaction, or occurrence as the
original complaint and therefore related back to the filing of the original complaint for
purposes of the SoL because the operational facts of the original complaint put
defendant on notice of the claim that the plaintiff later sought to add.
4. Answer
a) Respond to the complaint – 8(b) → admit, deny, or don't know (stuff isn't in your
control). FAILURE TO DENY IS AN ADMISSION (only thing that isn't an admission
is damages)
1 Zielinski v. Philadelphia Piers – defendant violated rule 8(b) by failing to provide a
more specific answer, which would have provided plaintiff with the information
necessary to determine that he sued the wrong defendant
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  The court therefore issued an order that (falsely) instructed the jury that the
defendant employed the alleged tortfeasor on the sate of the accident, and
explained that defendant would not be prejudiced by this order because it was
represented by the same company that insures the right defendants.
b) Assert affirmative defenses – 8(c)(1) – lists 18 affirmative defenses (affirmative →
defendant is raising a new fact, denial → no new facts). Must plead the affirmative
defenses, if you don't plead them, you might waive them.
1 statute of limitations
2 statute of frauds
VII. Joinder – Define the scope of the case (how many claims, parties) (Great vehicle to test SMJ)
Every single claim – Does it invoke diversity or federal question? No, supplemental
jurisdiction? Look to FRCP RULES 13, 14, 18, 20
o Is Joinder permissible under the rules? If so:
o Does the (federal) court have jurisdiction over the claim and/or party?
A. Claim Joinder by the Plaintiff – 18(a) – plaintiff can join any claim she has against the
defendant. Then assess SMJ – Can the case as structured get into federal court?
B. Claim Joinder by the Defendant – defendant is going to assert claim against someone.
1. Counterclaim – 13(a)&(b) – asserted against an opposing party, against someone who has
sued you.
a) Compulsory Counterclaim – 13(a)(1) – arises from the same T/O as the plaintiff's claim,
you must assert that claim in this original case or it is waived/lost. (Only compulsory
claim) (Must be brought)
1 Example – A and B are driving around and crash, case 1 – A sues B; case 2 – B sues
A, loses because it was a compulsory counterclaim
2 Federal court will have jurisdiction over a compulsory counterclaim, arises out of
the same T/O (roughly equivalent to the same common nucleus)
3 Plant v. Blazer Financial Services – the creditors action to recover an unpaid debt is
compulsory counterclaim (subject to supplemental jurisdiction in federal court) in a
lawsuit brought to enforce the Truth in Lending Act (TILA) because both claims
arise out of the same transaction or occurrence
b) Permissive Counterclaim – 13(b) – any counterclaim that is not compulsory (does not
arise from the same T/O as the plaintiff's claim)
1 Will not have jurisdiction in federal court automatically, needs to go through the
federal SMJ tests.
c) HYPO –
P(NY) → claim for $100,000 (diversity more than D(FL) Diversity – exceeds over 75,000
75,000)
← compulsory counterclaim for $90,000 (against Invokes diversity, exceeds 75,000, gets into
opposing party, arising from the same T/O) federal court on diversity
P(NY) → D(FL)
← compulsory counterclaim but only for 45,000 Diversity? Doesn't meet 75,000
FQ? No federal Question
Supplemental? 1367(a) – meets Gibbs, common
nucleus of fact, must arise from same T/O
Does 1367(b) take it away? Diversity case check.
Claim by defendant so 1367(b) doesn't take it
away.

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 2. Cross Claim – 13(g) – claim against a co-party, must arise from the same T/O as the
underlying case, never compulsory.
3. HYPO – 3 people driving and crash. Every claim is more that 75,000.
A(VA) → more than $75,000 B(NY)
C(NY)
← C should file compulsory counterclaim against
A (against opposing party, same T/O) Invokes
Diversity (NY v. VA, and more than 75,000)
C(NY) → Cross Claim B(NY) Diversity? No!
FQ? No!
Supplemental? Does 1367(a) grant it? Yes, cross
claims always meet 1367(a) because of same T/O
Does 1367(b) take it away? Diversity case? Yes.
Claim by plaintiff? No, 1367(b) only takes away
for claims by plaintiff.

C. Proper Parties – 20(a) – Who MAY be joined?

1. Co-Plaintiffs – 20(a)(1) – Claims arise from the same T/O and raise at least one common
question of fact or law.
2. Co-Defendants – 20(a)(2) – Claims are from the same T/O and raise at least one common
question of fact or law.
3. Protective measures – 20(b) – keep the case from getting overly complicated
4. Misjoinder and nonjoinder – 21 – the court can add or drop any party that is not rightly
joined or add/drop a claim.
a) Consolidation/Separate Trials – 42
5. Mosley v. General Motors Corp. – the district court abused its discretion by severing
plaintiffs actions because their allegations of a company-wide policy of employment
discrimination arose out of the “same series of transactions or occurrences” and involved a
common question of law or fact under rule 20(a)
D. Necessary and Indispensable – Who MUST be joined? Must be obvious, P here and D here
and A (absentee non party), a court will reach up and grab A and include him in the party
because he is necessary.
1. Rule 19 –
a) Is A necessary or required? If we meet any of three tests (19(a)(1)) then yes.
1 19(a)(1)(a) – Without A the court cannot accord complete relief among the parties
2 *19(a)(1)(b)(1) – the absentees (A) interest may be harmed if not joined
3 19(a)(1)(b)(2) – The absentees (A) interest may subject the defendant to a risk of
multiple or inconsistent obligations
Joint tortfeasors are never necessary.
1 HYPO – You own 1,000 share of stocks in XYZ Co., but I claim that you and I
bought the stock together, I paid half the price, and we agreed to own it jointly. Who
is the absentee? I sue XYZ Co. (not you, you are the absentee), I ask the court for an
order canceling your stock, and reissue in our name jointly). Meet the tests?
 Without you, the court cannot accord complete relief.
 You will be harmed if you aren't joined, if I win, your stock is cancelled.
 If you're not brought in, the corp. can be hit with multiple litigations. Cause then

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 you will sue the Corp.
b) Is joinder of the absentee feasible?
1 Do we have personal jurisdiction over the absentee?
2 Bringing you in will not gum up diversity.
c) Absentee is necessary but cannot be joined (no PJ or screws up diversity)
1 Either proceeds without Absentee; or
2 dismiss the entire case
3 19(b) – 4 factors whether to proceed or not (answer is never clear)
 We should not dismiss this case unless the plaintiff has an alternative forum (can
the plaintiff get justice somewhere?)
 If the court dismisses, then you call the absentee indispensable – 12(b)(7)
 If the joinder claim starts with “C” (counter claim/cross claim) claims between
existing parties; if it starts with “I” you are joining someone new.
E. Impleader – rule 14 – defending party brings in a new party a TPD (Third Party Defendant)
may be liable to the defendant for the plaintiffs claim (derivative liability)
1. Through indemnity or contribution, a way of passing liability on within the same lawsuit
2. Rule 14(a) – can assert a claim against the TPD as long as it arises from the same
transaction or occurrence, or the TPD can make an assertion against plaintiff
a) Price v. CTB – Under rule 14(a), a defendant may assert a claim against someone not a
party to the original action if that third party’s liability is in some way dependent upon
the outcome of the original action. The third party liability must in some way be
derivative of the original claim; a third party may be impleaded only when the original
defendant is trying to pass all or part of the liability onto that third party
1 Because rule 14 is merely a procedural rule, the propriety of its application depends
upon the existence of a right to derivative liability under the substantive law
2 Although Alabama does not recognize a right to contribution among joint
tortfeasors, it does recognize a doctrine of implied contractual indemnity where (1)
the seller is without fault (2) the manufacturer is responsible and (3) the seller has
been required to pay a monetary judgment. Because this doctrine could apply under
the circumstances, Latco’s third party complaint against ITW was proper.
F. Intervention – Rule 24 – the absentee brings themselves into the case, chooses which side to
come in on
1. Intervention must be timely. Intervention of right (24(a)(2)) – right to intervene if her
interests may be harmed if she does not come in. Permissive intervention (24(b)(2)) – the
absentee has to show that her claim or defense and the pending case has at least one
common question (assess SMJ!)
G. Class Action – the representative sues on behalf of a group/class
1. The Pre-requisites (23(a)) – in every class action you have to meet all 4 four pre-requisites
a) Numerosity – there must be too many people for practical joinder
b) Commonality – something in common, question of law or fact something!
c) The representative’s claim must be typical of the class members.
d) The rep will adequately represent the interests of the class.
2. The types of class – (23(b)) – 3 types of class actions (meet 1)
a) 23(b)(1)
b) 23(b)(2)
c) 23(b)(3) – damages class must show both
1 Common questions predominate over individual questions
2 The class is the superior method for resolving the dispute

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 3. Motion to certify – court must certify the class action – court must define the class and
appoint class counsel
4. Notice of Pendency – 23(c)(2)(b) – in the class and will be bound if they do not opt out
a) In (b)(3) the court must give individual notice to all members reasonably identifiable,
this notice is only needed in the (b)(3) action.
5. Who is bound by a class action? All class members are bound except those that opted out of
a (b)(3). There is no right to opt out of a (b)(1) or (b)(2) (they are mandatory)
6. Settlement or Dismissal of a certified class – either settlement or dismissal must be
approved by the court – 23(e)
7. SMJ -
a) For citizenship you look only at the representative, not the other class members
b) Amount of controversy – representatives claim should exceed 75,000
VIII. Discovery
A. Required Disclosures – 26(a) – parties must produce information without any request
1. Initial Disclosures – A(1) –
a) must identify people with discoverable information that you may use to support claims
or defenses;
b) identify documents and things (Electronically stored information)
2. Experts – A(2) – experts whom we will call at trial
3. Pretrial Required Disclosures – A(3) – lay out everything that you will give at trial
B. Discovery Tools – (5 tools)
1. Deposition – 30 (oral) & 31 (written) – answers are oral, the deponent is under oath. You
can use these for info from a party or non-party, must subpoena the non-party.
2. Interrogatories – 33 – written questions answered in writing under oath, can only go to
parties. Great for background info, usually before the deposition
3. Request to produce – 34 – written request to give access to stuff; 34(c) – send to non-parties
if you request a subpoena
4. Medical Exam – 35 – must get a court order, must show good cause, and that the condition
is in controversy. Ordered of a party or of somebody in the parties custody or legal control
(doesn’t include employees)
5. Request for admissions – 36 – force the party to admit or deny any discoverable matter, fail
to deny is an admission. Only for parties.
C. Scope of Discovery –
1. Standard - 26(b)(1) – we can discovery anything that is relevant to a claim or defense
2. Relevance – reasonably calculated to lead to admissible evidence. Broader than admissible,
discover stuff that can’t be admitted to the trial.
3. Privileged Matter is not Discoverable – privileged means confidential communications
between certain kinds of people (ex. Attorney – client)
4. Work Product – 26(b)(3) – trial preparations – Hickman v. Taylor – work product this is
material that is prepared in anticipation of litigation. Work product cannot be discovered.
Avoid free loading. Override work product protection if you can show (1) substantial need
and (2) it is not otherwise available. Absolute work product that you can never get: mental
impressions, conclusions, opinions, and legal theories. Does not have to be generated by a
lawyer.
a) Underlying facts – not protected
b) Attorney memos – qualified privilege potentially overcome by necessity
c) Mental impressions – absolutely protected
5. Davis v. Precoat Metals – Defendant was compelled to produce complaints of race
discrimination that were recently filed by other employees in the same plant because this
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 information was relevant, and plaintiffs requests were narrowly tailored to the specific
claims in the case
6. Steffan v. Cheney – the district courts discovery order and subsequent dismissal of the case
were based upon an error of law because judicial review of an administrative action is
confined to “the grounds upon which the record discloses that the action was based.”
Accordingly the question of whether the plaintiff engaged in homosexual conduct would
only be relevant if the navy dismissed him for that reason
7. Expert Information –
a) Thompson v. The Haskell Co. – there were “exceptional circumstances” justifying the
disclosure of a non-testifying psychologists observations because plaintiffs mental and
emotional state ten days after her termination was highprobabtive to an essential
elements of her case and the defendant could not obtain the information contained in the
report by any other means
b) Chiquita International v. Reefer – there were no exceptional circumstances warranting
discovery of the observations of plaintiffs non-testifying expert witness because the
defendant was not precluded from sending its own expert to the scene by forces beyond
its control
8. Privacy Issues in Discovery –
a) Stalnaker v. Kmart – court granted a protective order to preclude discovery of voluntary
sexual activities of non-party witnesses, except that they involved Mr. Graves (the
alleged perpetrator of sexual harassment) and showed conduct on his part to encourage
such activities
IX. Pre-Trial Adjudication (Trying to avoid trial; rarely granted)
A. 12(b)(6) – Failure to State a Claim
1. Court cannot look at evidence, look only at the face of the complaint
2. If all the facts alleged were true, would they win? Does the law recognize this?
3. Maybe sloppy pleading
B. Summary Judgment – 56 – The moving party must show
(You only go to trial if there is a dispute of fact)
1. There is no genuine dispute on a material fact – Ask Is there a dispute on material fact?
2. That she is entitled to judgment
3. If there is a dispute, NO summary judgment. No dispute as to fact? Summary Judgment
Celotex Corp. v. Catrell – all stand for the proposition that courts should loosen up and try
summary judgment. 56(a) the court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.
Moving Party
Canvass Record – party seeking summary judgment always bears the initial
responsibility for informing the district court of the basis for its motion, and identifying
those portions of the record that it believes demonstrates the absence of a genuine issue
of material fact
But not refute claim – there is no requirement in rule 56 that the moving party support its
motion with affidavits or other similar materials negating the opponent’s claim. Rule
56(c) which refers to the affidavits, if any, suggests the absence of such a requirement.
The burden of the moving party may be discharged by “showing” – that is pointing out
to the district court – that there is an absence of evidence to support the non-moving
party’s case.
Non-Moving Party –
1. Produce cognizable evidence that establishes genuine issue of material fact for trial:
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 a. 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 to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at a trial. The standard for summary judgment mirrors the
standard for a directed verdict under rule 50(a)
2. SJ is an integral part of the rules:
a. Before the shift to notice pleading accomplished by the federal rules motions to
dismiss a complaint or to strike a defense were the principal tools by which factually
insufficient claims or defenses could be isolate and prevented from going to trial.
But with the advent of “notice pleading” the motion to dismiss seldom fulfills this
function any more and its place has been taken by the motion for summary
judgment.
X. Trial (go to trial to resolve disputes of fact)
38(b) – must demand a jury trial in writing in federal court
A. Right to Jury Trial – 7th Amendment – only in federal (not state) civil (not criminal) cases.
Preserves the right to a jury, does not create or grant. Only at law not equity. Looks to see if you
would have had a jury at English common law in 1791, when the amendment became effective.
1. Chauffeurs v. Terry – look to two things for jury trial right
a) Is this claim analogous to a claim that existed in 1791 in England? Usually yes.
b) What remedy is sought by the plaintiff?
1 Separate law courts and equity courts in 1791.
2 Remedy at law is money
3 Equity remedies are like injunction, performance, rescission, and reformation.
 Preliminary Injunction – William Inglis & Sons Baking v. ITT Continental –
Standards
1 Four Factors Test: Court finds that the (1) plaintiff will suffer irreparable
injury if injunctive relief is not granted, (2) plaintiff will probably prevail on
the merits (3) in balancing the equities, the defendants will not be harmed
more than plaintiff is helped by the injunction and (4) granting the injunction
is in the public interest
2 Plaintiff must demonstrate either a combination of probable success and the
possibility of irreparable injury or that serious questions are raised and the
balance of hardships tips sharply in his favor. It is not necessary that the
moving party be reasonably certain to succeed on the merits. If the harm that
may occur to the plaintiff is sufficiently serious, it is only necessary that
there be a fair chance of success on the merits.
2. Beacons Theaters and Dairy Queen
a) We determine the jury right issue by issue.
b) If an issue of fact underlies both law and equity, you get a jury.
c) Generally, we will try the jury issues first.
B. Motions at Trial –
1. Motion for Judgment as a Matter of Law – JMOL – Directed Verdict – 50(a) – If granted
no jury will decide, only the judge.
a) 50(a)(1) – Reasonable people could not disagree on the result
b) 50(a)(2) – Make this motion only after the other side has been heard at trial
1 Bias v. advantage International – summary judgment was granted in favor of
defendants because it was undisputed that Bias was a drug user who could not have
obtained a valid life insurance policy prior to his death
2 Pennsylvania Railroad v. Chamberlain – defendant was entitled to a directed verdict
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 because a reasonable jury could not conclude that defendants negligence caused the
accident
 Plaintiffs circumstantial evidence supporting conflicting inferences
 Defendant presented uncontradicted, direct evidence to defeat liability
 The testimony of plaintiffs witness was not credible
2. Renewed motion for Judgment as a Matter of Law – RJMOL – Judgment Not Withstanding
the Verdict – JNOV – 50(b) – court denies JMOL, case goes to the jury, jury decides, and
the loser makes the RJMOL, if given, the judge takes away the jury decision and gives it to
the loser. If we grant this, we are saying that the jury is reaching a conclusion that
reasonable people could not have reached
a) Must move within 28 days of entry of judgment
b) JMOL and RJMOL – there must be a motion, the party must raise this the court cannot
do it on its own
c) To bring RJMOL, you must have moved for JMOL at the proper time during trial, if not
you have waived RJMOL.
d) Lind v. Schenley Industries – the district court substituted its judgment for that of the
jury and therefore abused its discretion by granting defendants motion for a new trial in
a simple case turning entirely on credibility determinations
1 Dissent – wide discretion should be accorded to the trial judge because granting a
motion for a new trial “has provided the one important limitation on the power of the
jury to make an unimpeachable decision on the facts, even where the evidence is
conflicting.
3. Motion for New Trial – 59(a)(1) – must move no more than 28 after judgment. If granted,
the trial is started over. Some mistake. Court can enter this on its own. New trial is less
drastic that RJMOL.
a) Peterson v. Wilson – the district court abused its discretion by ordering a new trial based
on ex parte comments made by jurors to the court indicating that the jury had
disregarded its instructions. The jury’s verdict cannot be impeached based on evidence
of its deliberations; a court may only consider evidence of improper outside influences
for this purpose
XI. Appeals
A. Final Judgment Rule – In Federal court (and most states) you cannot appeal until the trial
court has entered a final judgment. After making this order, does the trial judge have anything
left to do on the merits of the case? Yes – Not appealable; No – appealable
B. Interlocutory Review –
1. By Statute – §1292(a) (mostly injunctions) & §1292(b) (when trial court and appellate court
agree to let you appeal) – certain occasions when it is appealable
2. By Federal Rule – 23(f) (rulings on class certifications) & 54(b) (cases with multiple claims
or parties the court may allow you to appeal)
3. Common Law – Collateral Order Rule – very limited, gives court of appeals discretion to
hear some collateral issue separate from the merits of the case
XII. Preclusion – Claim, Issue, Res Judicata, Collateral Estoppel
Must be two cases – case #1 has a judgment and case #2 pending judgment. Does the judgment in
case 1 precludes the court from litigating in case 2?
A. Claim Preclusion (Res Judicata) – (Always start here) Only get one lawsuit to vindicate a
claim. Three Requirements to claim preclusion
1. Show that both cases were brought by the same claimant against the same defendant
2. Case 1 ended in a valid final judgment on the merits

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 a) All judgments are on the merits unless they are based on venue, jurisdiction, or
indispensible parties.
3. Show that both cases involve the same claim (T/O) and you can only sue on that once
a) Claim – as a transaction or occurrence (T/O) (Majority view)
b) Primary Rights Theory – you have different claim for each right invaded (minority
view)
4. HYPO – Lois and Meg are driving in there own cars and collide.
a) Case 1 – Lois sues meg for personal injuries.
b) Case 2 – Lois sues meg for property damage from same crash.
1 Dismiss for claim preclusion?
 Were both cases brought by the same claimant against the same defendant?
1 Yes, Lois against Meg both times.
 Did case 1 end in a valid final judgment on the merits?
1 Yes, they litigated the case.
 Did both cases involve the same claim? Split of authority
1 Majority view – the claim is the transaction, yes dismiss claim 2.
2 Minority view – do not dismiss, because you have different claim.
5. HYPO 2 – Lois and Meg are driving in there own cars and collide.
a) Case 1 – Lois v. Meg
b) Case 2 – Meg v. Lois
1 Dismiss?
 Were both cases brought by the same claimant against the same defendant?
1 No, meg wasn’t a claimant before
 Compulsory counterclaim? Yes, meg had a claim arising out of the same T/O
6. Traditional Approach – one suit precludes a second “where the parties and the cause of
action are identical”
7. Restatement of Judgments – all claims arising from a single “transaction” must be litigated
in a single, initial lawsuit, or be barred from being raised in subsequent litigation.
8. Frier v. City of Vandalia – Majority: Frier should have asserted his constitutional claim
against the city in the initial lawsuits because both actions involved the same “common core
of operative facts” and the same transaction. Concurrence: Rejects the application of res
judicata based on Illinois continued adherence to the traditional approach, but would affirm
the district courts judgment on the merits.
9. Martino v. McDonalds System – common law principles of res judicata barred plaintiffs
claim because (a) the prior consent judgment was an adjudication on the merits, (b) if
plaintiffs anti-trust theory had merit, it would have been a defense to the prior lawsuit, and
(c) precedent and policy require that res judicata bar a counterclaim when its prosecution
would nullify rights established by the prior action
10. Searle Brother v. Searle – a “partnership” was not precluded from litigating its alleged
ownership interest in property based on prior litigation because it was neither a party to the
prior action nor a privity with a party
11.Respect for Judgments
a) Gargallo v. Merrill Lynch – a prior state court judgment does not bar a subsequent
federal lawsuit based on the same caused of action when the state court lacked SMJ over
the claim
b) Elements of Issue Preclusion
B. Issue Preclusion (Collateral Estoppel) – issue was decided in case 1, the same issue arises in
case 2, we wont re-litigate the same issue (narrows litigation) requirements. Restatement § 27 –

18
when (1) an issue of fact or law is (2) actually litigated and determined by (3) a valid judgment
and (4) the determination is essential to the judgment, the determination is conclusive in a
subsequent action between the parties, whether on the same or a different claim.
a) Illinoise Central Gulf Railroad v. Parks - Plaintiff was not barred from re-litigating his
alleged contributory negligence because defendant failed to meet its burden of showing
that the issue was actually litigated and decided in prior litigation between the parties
1. Show that case 1 ended in a valid final judgments on the merits
2. Show that the same issue was actually litigated and decided in case 1
3. Show that that issue was essential to the judgment in case 1 (usually obvious)
4. Against whom is preclusion used? Can only be used against somebody who was a party to
case 1, including people in privity to those in case 1. (Must’ve been a party to the earlier case)
5. By whom is preclusion used? The starting point is mutuality.
a) Non-mutual issue preclusion – being used by somebody who wasn’t a party in case 1.
1 Non-mutual defensive collateral estoppel – the person using issue preclusion was not
a party to case 1, and is the defendant in case 2. So long as the person you are using
it against had a full chance to litigate in case 1
2 HYPO – your roommate borrows your car and collides with freer.
 Case 1 – Freer sues your roommate – we litigate and your roommate wins, the
wreck was my fault.
 Case 2 – Freer sues you – no claim preclusion. Freer already was decided to be
the cause.
1 Yes.
2 The issue of negligence was litigated before. Yes.
3 The negligence was essential to the judgment. Yes.
4 Against somebody from the first case? Yes.
5 By whom? I was not a party to case 1, so it is non-mutual. So long as the
person you are using it against had a full chance to litigate in case 1. Probably
did so most likely yes.
3 HYPO - your roommate borrows your car and collides with freer.
 Case 1 – Freer sues your roommate – we litigate and your roommate wins, the
wreck was my fault.
 Case 2 – you sue Freer – you’ve already been decided to be the cause of the
wreck
1 Yes
2 Yes
3 Yes
4 Yes
5 By whom?
 Non-mutual offensive collateral estoppel – you are the plaintiff in case 2.
Most courts today say no, that this is not o.k.
Parklane Hosiery Case – non-mutual offensive is ok if it is not unfair
1. Did the person have a full chance to litigate in case 1?
2. Could the person foresee multiple litigations?
3. Could the user have joined easily in case 1?
4. No inconsistent judgments on the record (4 yes v. 1 no or 5 yes v. 0 no)
5. The preferable approach for dealing with the potential problems of offensive,
non-mutual collateral estoppel in the federal courts is not to preclude the use
of the doctrine, but to grant trial courts broad discretion to determine when it

19
 should be applied
a. Could the plaintiff have easily joined the prior action?
b. Were the stakes in the first lawsuit sufficiently high?
c. Would the second lawsuit provide additional procedural safeguards?
d. Are there already inconsistent judgments on the issue?
e. Are there other reasons to question the reliability of the prior judgment?
Restatement § 29

Possibility: Sanctions under rule 11

a. Christian v. Mattel (Barbie case) – based on the inadequate factual investigation, the
district courts order was tainted by its consideration of other misconduct that cannot be
the basis for sanctions under rule 11 – such as discovery abuse, misstatements made
during oral argument, and conduct in other litigation.
b. 11(b)(2) –
i. Bridges v. Diesel Service, Inc. – plaintiff violated 11(b)(2) by failing to conduct
competent legal research prior to filing a complaint. Court exercised discretion
and declined to impose sanctions

Personal Jurisdiction Test:

1. The due process clause of the United States constitution allowed service on a defendant
outside the states as long as the defendant have certain MINIMUM CONTACTS with
the forum state such that the maintenance of the suit does not offend TRADTIONAL
NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE (International Shoe v.
Washington)
a. FAIR PLAY AND SUBSTANTIAL JUSTICE: (Burger King v. Rudzewics)
i. The burden on the defendant;
ii. The plaintiffs interest;
iii. The forum states interest; (McGee v. International)
iv. The interstate judicial systems interest;
v. The shared policy interests of the several states.
2. The defendant must PURPOSELY AVAIL ITSELF of the laws of the forum state
(Hanson v. Denckla)
3. Contact with the forum state must have been PURPOSEFUL (Reasonably foresee that
the products would end up there? Purposefully direct its product/activities toward the
forum state?) (Worldwide Volkswagen v. Woodson)
4. (1)Minimum contacts with the forum state, (2) contacts were voluntary, (3) the state is a
fair and convenient location for the lawsuit.
5. CONTINUOUS and SYSTEMATIC contacts (Helicopteros Nacionales v. Hall) –
relatedness between the defendants activities in the state and the claim arise from concern
over foreseeability of the litigation
6. Internet Cases – Sliding Scale Test – Passive website that just posts information – NO
jurisdiction; Middle Website that posts information and answers questions – MAYBE;
Active website that takes orders and sells products into a state – YES jurisdiction.

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