ISSUE PRECLUSION

1) Did case 1 end in a final valid judgment on the merits? (No fraud, lack of SMJ, Venue, Joinder, Oppty to be heard issues) NO IP

2) Was the same issue actually litigated in case 1?

May not be satisfied where burden of persuasion is different May not be satisfied by mere existence of similar facts

Litigation

3) Same Issue 4) Actually decided 5) Was the issue necessary to the judgment in case 1?
May not be satisfied IF decision couldve been based on alternative theories (must be logically necessary, not just used - Rios)

6) Only AGAINST party (in privity w) who was a party in case 1

7) By whom is IP asserted?

MIN: Tradl full mutuality same parties as in case 1 or parties in privity

MODERN

OnMIP new P asserts IP against D who lost in 1st suit Could P have intervened in 1st suit Fair to D?

Most states: No OnMIP

DnMIP new D asserts IP against P who lost in 1st suit

Most states: DnMIP ok

1. Incented to fully litigate 2. Equitable Procedural Opportunities 1st = 2d 3. Inconsistent judgments

ISSUE PRECLUSION
Supplemental Jurisdiction-Our friend who gets things into federal court for us
NO-SuppJD doesnt apply

Does the main claim have proper SMJD by DIVERSITY or FED Q?

Can you properly join additional parties or claims by:

Rules 13

14

18

20

Yes

Yes

Yes

Yes NO, Stop

Is PJ proper

YES Are joined claims properly in Fed Ct NO 1367 (a) Are added claims from the same nucleus of operative facts? YES Is original claim based on Fed Q? NO Is original claim based on DIVERSITY YES Who is seeking SuppJD? If YES, stop SuppJD is prohibitied. D-Court may grant. Ct. has discretion under (c). P-Does 1367 (b) prohibit SuppJD? You cant have SuppJD over claims by Ps who were joined under rule 14,19,20, or 24 If P is asserting a cross claim/answer against 3rd party D: 1) P is still P and 2) Functionally 1367 (b) knocks it out because 3rd party was joined by rule 14,19,20,24 YES Court may grant SuppJD No, SuppJD is not possible YES, no need for SuppJD

ISSUE PRECLUSION
Claim Preclusion/Res Judicata

Final judgment on the merits? (rule 41b)

NO- Judgment was not on the

merits of the case if case ended because of SMJ, PJ, venue, indispensable parties.

Yes

NO Claim Preclusion

Yes, CP may
Was the claim from the same T&O? apply, go to #3
Note: Same t/o is subject to a test. 1) Majority view (Federal law)- A claim means all rights of relief arising from the t/o. 2) Minority view- (Primary rights theory) You have a different claim for each right invaded. ex. Personal injury and Property damage are different.

NO, CP does not apply.

Go to #3 to finish analysis

Parties

YES, CP applies, parties are bound. NO, CP doesnt apply, Go to b.

Co-Parties in 1st suit

a) Is the suit brought by the same claimant against the same defendant? b) Are the parties in privity?

YES

NO, not bound by CP.

c) Party laboring over party not present in suit by involved in conflict.

YES if they are: Members of a class represented in 1st suit Controlling reps or agents Estates (Executors/Beneficiaries) Owners of claim by acquisition

YES, bound by CP NO, not bound by CP

Removal 1441

ISSUE PRECLUSION

Cases are removed up only. Removal is vertical

Granted 1- Removal requested by D 2-Fed Court has original jurisdiction 3-If state Court doesnt have jurisdiction over claim originally filed in state ct, case may be removed to Federal Court.

1441 (c) A state question may be joined to a Federal question and the court will decide everything. This is very rare. Court may in its discretion remand all claims to state court when state law predominates

Denied If a party is a citizen of the state to which case will be removed, Federal court is not allowed. (policy)

Cases are remanded back down

ISSUE PRECLUSION

Personal Jurisdiction
Step 1: LAS Long Arm Statute: Whether forum states statute authorizes PJ over D. P will argue YES D will argue NO
Step 3: FAIRNESS TNOFP&SJ Does D have such minimum contacts with the so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

Step 2: CONTACTS Minimum contacts or purposeful availment

Pennoyers 4 traditional bases of PJ: 1) Served w/process in state 2) Agent served w/process in state 3) Domiciled in forum 4) D consents to JD

KS 60-308 b (113) Which sections apply to this situation? Argue both sides. 17-7303, def. of doing business in KS.

Does claim arise out of or relate to Ds contacts with forum? (specific jurisdiction D can be sued in forum only for a claim arising in the forum).

Ds contacts with forum are systematic and continuous. (General Jurisdiction(17-7303), D can be sued in forum for claim arising any where in the world). D will always Gen. Jur. Is a violation of due process. Reciept of revenues from a K negotiated in forum state not enough (helicopter

D has burden to prove that he has no expectation to be hailed into court. D must present a compelling case that the presence of some other considerations would render PJ unreasonable.

Are Ds contacts w/ f.s. sufficient such that D has a expectation to be hailed into court?

Asahi- If the burden of defending suit is greater on the D it violates T NOFP&SJ

Yes-Contacts are sufficient. Contract clauses Can negate this 1) forum selection clause (Carnival) 2) Jurisdictional agreement clause 3) Law selection clause (B.K.)

NoContacts are isolated, random or a unilateral act of P.

Balancing Test1) Forum states interests 2) Ps interests 3) Judicial interest 4) Shared state interest/social policy

MaybeStream of commerce plus anticipation it will go to f.s. Must do TNOFP&SJ analysis

Change of Venue ISSUE PRECLUSION

Transfer Horizontal Move

28 U.S.C. 1406 Cure of Defects

Forum Non Conveniens

Use law of first venue

1404

Ie. AllisChalmers KS ct. used Miss. law

St ct. w/in st. ct

Fed ct to Fed ct.

1406 (a) requires the venue lay in the wrong district but not necessarily wrong venue. Venue can be proper but lay in the wrong district. Ie. In a state w/two districts. Venue is proper in Fed ct. but PJ is not found in both.

State to Foreign State

Fed to Foreign State

Cases are dismissed and must be refilled in the new forum. This is a final judgment on the case. Law of NEW forum/venue is used.

Also consider Interest Factors from Piper v.Reyno

Private Interest Factors: 1-Relative ease of access to sources of proof. 2-Availability of compulsory process for attendance of unwilling 3-Cost of obtaining attendance of willing witnesses 4-Possibility of view of premises (if appropriate to action) 5-Practical that make trial of a case easy, expeditious and inexpensive Public Interest Factors: 1-Administrative difficulties flowing from court congestion 2-Local interest in having local controversies decided at home 3-Interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action. 4-Avoidance of unnecessary problems in conflict of laws or application of foreign law. 5-Unnecessary burdening of citizens w/ jury duty in the unrelated forum.

Transfer as cure to defect. Use law of NEW venue

ISSUE PRECLUSION
Federal Question 1331
Requirement #1

Subject Matter Jurisdiction

Complete diversity of CITIZENSHIP among parties.

Requirement #2

Diver sity 1332

Amount in controversy Must exceed $75,000. $75,000.01 is enough.

1333Admiralty 1334Bankruptcy

1. Arising Under 2. Cant use as a defense, the Well pleaded complaint

Nobody on one side from the same state as anyone on the other side of the v. Citizenship of AliensIf admitted to U.S. for permanent residence, state where domiciled.

Citizenship of Natural Citizens-decided by domicile. 1-You can only have one domicile at a time. 2-Change in domicile takes two things: physical presence in the new state AND while you are there you must form subjective intent to make that state your permanent home.

If P in good faith assets that the amount is over $75,000 it controls unless it is a legal certainty that she can recover that much. Ultimate amount recovered is irrelevant to SMJ (1333 b)

1338Patent, trademark, copyright

P must have total claims against each D of >$75K if Ds are severally liable.

Insurance companies are citizens of : 1-The state where their insured is a citizen. 2-The state where they are incorporated. 3-The state where they have their PPofB.

Citizenship of Corporations1-State where they are incorporated. 2- Their Principle Place of Business. Where is that? Look at: 1) Corp. nerve center-where major decisions are made. 2) Muscle centerWhere corp does the bulk of its activity. 3) Most courts will look at everything and call it total activity 4) Most P will sue the nerve center unless all is in a particular state.

For joint liability claims use total value (Joint liability-one claim against two people).

Citizenship of unincorporated businesses- look at the citizenship of all the partnes/members.

For decedents, minors and incompetents see 1332c2.

Ex. P has a claim of $80K against D1 and a claim of $20K against D2, the claim against D2 will not be allowed, it does not meet the amount in controversy req.

ISSUE PRECLUSION JOINDER

Rule 13 Counterclaims and Cross Claims
(A) Compulsory Counterclaims D must assert all claims arising from same t/o as Ps claim. If not raised now it is waived.

Rule 18 (for P) Joinder of claims and remedies

Once P has a claim against D, P can bring all claims P has against D.

Rule 14 Third party impleader

Must be if I am liable then it is only partial and 3rd party must help me pay or reimburse me

Rule 20 (for P) Permissive Joinder

Plaintiffs Special Rule (or a claimants rule)

(B) Permissive counterclaims D may raise claims not arising from same t/o as Ps claim. D must file 12 (b) motions in preanswer to avoid voluntarily appearing. Ct. must have SMJD and SUPPJD over this claim. Use 1367(a)

P must have an original claim. Look to rule 18 after claim is filed-use to join other claims

Look at the substantive law to see if there is a connection between the parties. i.e. a contract.

You can have more than on P if their claims arise from the same t/o and raise at least one common question of law or fact.

(G) Cross Claims may be asserted by co-parties but they must arise from the same t/o.

(H) D as 3rd party P can assert a counterclaim or cross-claim using rule 20. P will argue D cant use rule 20 because it is a P rule. D will argue that as claimant he is a P.

him not me is OK as a defense but not as a reason for joinder.

Counterclaim P v. D Cross Claim P v. D1, D2

All suits must relate to the original t/o.

You can have more than one D if their claims arise from the same t/o and raise at least one common question of law or fact.

Use logical relationship test to assess if it is the same t/o