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Fuck yes, lets get ‘er done son! Three basic requirements that limit the proper courts for any lawsuit Is the need to find a court that can exercise PJ over the D Need a court that has s-m jurisdiction The chosen forum must be a proper “venue” under the applicable venue statute Personal JurisdictionPersonal jurisdiction is the power of the court to enter a judgment against a person or thing Can be asserted by a court only if Exercise of power is authorized by a statute State long arm statute Consistent with the due process clause Did they consent to PJ? Can be challenged by collateral attack or special appearance to challenge General personal jurisdiction is warranted when a defendant has sufficient contacts with the forum state to warrant asserting jurisdiction over it for matters arising out of or related to its activity in the forum Domicile or resident of the state Continuous and systematic Specific personal jurisdiction is warranted when a defendant has sufficient contacts with the forum state to warrant asserting jurisdiction over it for matters arising out of or related to its activity in the forum Relying on something that happened within the state Single and isolated incident giving rise to the claim PJ: Specific May the court assert PJ under a statute Is the assertion of PJ consistent with due process Does the D have minimum contract with the forum state such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice” (International show) Identify minimum contacts Did the contacts in the state give rise to the liability being sued on? Continuous and systematic (international shoe) Single and isolated, but related (McGee) Did minimum contacts give rise to liability (Grey v. American Radiator) Did D purposefully avail himself of the states protection and benefits (WWVW & Burger King) Can consider: Whether D enjoys the benefit and protections of the forum state Conduct must be such that D can reasonably anticipate having to go to court in the jurisdiction (WWVW) GOODS Unilateral act of buyer don’t count: WWVWCONTRACTS Not: unilateral act of contract party (moving states after signing – HansonA continuous relationship: McGee Reasonable anticipation: Burger King Blown up (for goods) AsahiO’Connor: Plurality: no stream of commerce analysis. Min contact. No purposeful availment because the air valves were sold from one overseas company to the other. There was no targeting of CA, control over where the product ends up, and was not defined specifically for CA. There was no direct marketing of physical presence of the valve manufacturer in Ca. Brennan Plurality: Min contact analysis comes first. Putting the product into the stream of commerce (like American radiator) is enough to trigger purposeful availment. Company gets indirect benefits of CA through tire manufacture, which they should have known would come because of a predictable stream of commerce (American Radiator) Further blown up by J. McIntyre Kennedy Plurality: because there was only one sale in NJ and the company did not have any ads in NJ there was no direct targeting Breyer concurrence: no direct targeting of a state is required. However, one sale is not enough to give D minimum contacts. Ginsberg dissent: Targeting the US is enough, they purposefully sold to a US distributor in order to target the country. The company got an indirect benefit from selling in the state and could not have directed the distributor not to sell there Ask if reasonable based on: D inconvenience (undue burden) State regulatory interest (i.e. regulating dangerous activities (i.e. Kane) P interest in forum States shared interest in efficient resolution of cases Interstate interest in substantive social policy and preserving federalism/limits to state sovereignty Nation and international interest in keeping American courts our of foreign disputes Reasonable forum selection clauses that presumptively valid (Carnival Cruise) Benefits The company doesn’t have to defend itself across the countrySaves the court system time and resources needed to determine proper jurisd2 types Ouster clause: only the stated forum has jurisdiction Consent clause: waiver of objection to jurisdiction of a specific forum Is there a long arm statute? Does it comport with due process Test to check – international shoe Pennoyer v. Neff (1877) SCOTUS Notice within forum statePresence in the forum state (person or property) or consent Property needs to be attached at the beginning of the case Limits: status cases, can exercise over non-resident Marriage casesDomiciles, even if you leave the forum state and intent to return, court has authority of jurisdiction Kane v. New Jersey (1916) SCOTUS, written consent of jurisdiction because of driving Hess v. Pawloski (1927) SCOTUS implied consent by driving /other inherently dangerous activityMust be actual service within the state of notice upon him or upon some one who authorized to accept service for him International Shoe Co. v. Washington (1945) SCOTUS –consistent with notions of fair play and substantial justice Establishes that personal jurisdiction is valid when: The defendant has minimum contacts such that maintenance of the suit does not offend the traditional motions of fair play and substantial justice. Emphasis of International Shoes on quantum and quality of the defendants instate activitySufficient notice requirement International Shoe establishes that personal jurisdiction is valid when:The defendant has minimum contacts such that maintenance of the suit does not offend the traditional motions of fair play and substantial justice. International Shoe Test Not a mechanical quantitative test—judgment is needed Continuous and systematic Isolated/single event Related International Shoe (Yes for jurisdiction)Kane /Hess /McGee (Yes for jurisdiction)Unrelated (Maybe for jurisdiction)(Probably not for jurisdiction)McGee v. International Life Insurance, Co.1957) SCOTUS Life insurance, P in Cali, D in TxState interest in protecting citizens, Inconvenience of D doesn’t matter as much with modern transportationIsolated/single and related event Defendant must purposefully avail themselves of the protection of the forumHanson v. Denckla (1958) SCOTUS, Trust in De, estate in Fla-- Divided opinion (5-4)A state court may not exercise personal jurisdiction over a party located outside the state in which the case was filed unless the party has substantial contacts with the state.Jurisdiction under McGee, it was the mother who had contacts in Delware/Florida not the trust Majority emphasis on acts "by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state" Dissent: Black Nothing in the Due Process Clause that denies Florida the right to determine whether the appointment was valid against its statute of wills Gray v. American Radiator & Standard Sanitary Corp. (1961) SC of ILThe act and the injury cannot be separatedNumerated long arm statute understood as a max statute Contact with the forum state doesn’t have to be direct Jurisdiction because: Il interest in protecting citizens Reasonable inference that their products can go to any state Injury, facts, evidence, witnesses all in IL Titan enjoys the privileges and benefits (indirectly) of selling to that state World-Wide Volkswagen Corp. v. Woodson SCOTUS (1980) Multi forum test Forums interest // P interest // D interests // Interstate interest Jurisdiction does not travel with chattel Contact must be by effort/intent of the D who directly or indirectly market its product within the state Merely delivering into the stream of commence was not enough, had to have the expectation that it would be in the forum state Dissent: BrennanCourts should be able to assert jurisdiction even if there is no minimum contact – reasonable to defend When selling the car, D purposely injected the car into the stream of interstate commerce World-Wide Jurisdiction Test First: Evidence of contacts (minimum contact) Purposefully availing in forum state Need contracts that the D has made, needs to be direct, created purposefully If not sufficient minimum contacts, done Second: If there are minimum contacts Reasonableness: Is there fair play and substantial justice? Forums interest // P interest // D interests // Interstate interest Burger King Corp. v. Rudzewics, scotus, 1985 When determining if a defendant satisfies the minimum contacts requirement for personal jurisdiction, the court must look to the purposefully directed activities of the defendant toward the forum state and whether the harms arising or relating to those activities are the cause of the litigation.Need to look at state long arm statute Contract with a Florida company – availing self to forum state – Forum was picked in contract Dissent: Stevens D never entered Florida, would not have reasonably expected to be brought to court there No actual business of D in Florida – forum selection clause = boiler plate language Not fair for D to defend there The Due Process Clause of the Fourteenth Amendment prohibits a state from exercising personal jurisdiction over a defendant if doing so offends “traditional notions of fair play and substantial justice.” Asahi Metal Industry Co. v. Superior Court, scotus, 1987, component parts Plurality: O’Connor No stream of commerce Order: min contract purposeful availment Requires targeting of state: Purposeful availment Foreseeability - doesn’t matter -- they don’t know where the people they sell their products to will sell them, mere placement in the stream of commerce is not enough, some additional conduct is required to affiliate the D with the forum state – has to have action from the D to enter the forum market Requires more direct involvement with the forum market Foreseeability PLUS activity targeting the stateConcurrence: Brennan Order: Min contact purposeful availment Stream of commence = purposeful availment Still got indirect benefits of the state (Grey v. American Radiator)Into stream of commerce = understanding of where sold, -- was not enough sales to generate what is sufficient profits -- Substantial profits would mean foreseeable Targeting was not required Concurrence: Stevens Minimal contacts isn't necessary because it is not reasonable But if had to address the minimal contacts issue, number of units delivered annually means yes minimal contacts Court concerned about the reasonableness factors on the foreign policy implications Sequencing from WWVW in great doubt now -- leaves a lot of confusion of what is necessary? Directly into the stream of commerce with some understanding is enough (5 justices) Need something indirect at least (4 justices) Precedents make clear that it is the defendant’s actions, not expectations, that allow a State’s courts to exercise jurisdiction over the defendant. J. McIntrye Machinery v. Nicastro, scotus, 2011, metal shearing injury in NJPlurality: Kennedy Held that D lacked minimum contacts – wasn’t selling directly to NJ Targeting is important to due process analysis Purposeful avialment needs a direct target in the state Principal inquiry in cases of this sort is whether the defendant's activities manifest an intention to submit to the power of a sovereign"Concerned with fairness when looking at minimum contacts Concurrence: Breyer Refused to adopt either one of 2 approaches from Asahi Found that the D lacked minimum contacts, but refused to endorse Kennedy's approach and the approach of the dissent No direct targeting required, but one sale does not equal minimum contacts Dissent: Ginsberg Targeting the US is enough for foreign companies – got indirect benefits from the state Found that the D had minimum contacts and applied Brennan approach from Asahi Putting the product into the stream of commerce, not enough, need to purposefully put product within the American market (profits from USA) NJ part of the US markets, benefit from selling in the US and NJ market For a defendant to be subject to a state’s personal jurisdiction, it must purposefully avail itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.TestEITHER Using the law of the state to benefit themselves, not just throwing product into stream of commerce Sales plus marketing/contract in state Kennedy approach Targeting ORSubstantial amount of sales (at some level, this can be enough, even without other relationships) Continuous Amount of sales Obviously want to show both if possible Goodyear Dunlop Tires Operations, S.A. v. Brown Boys dying because of tire malfunction in France Tires put into the stream of commerce in NC, weren’t the cause of the injury Just placing a product into the stream of commerce doesn’t make the product at home wherever they end up (for general jurisdiction)New rule in order for a foreign defendant to be subject to general jurisdiction, it must not only possess continuous and systematic contracts with a forum state, but those contacts must also surpass some unspecified level when viewed in comparison to the company's "national and worldwide" activities. Whether that corporations affiliations with the state are so 'continuous and systematic' as to render it essentially at home in the forum stateFor general jurisdiction If so substantial and continuous in the forum-- must be exceptional to have something beyond the place of incorporation and the place of principle business Daimler Ag. V. Dauman, scotus, 2014 Arg victims suing Ger Mercedes in CaMercedes USA, while sells a lot in Cali, not when compared to Mercedes Germany worldwide and USA sales -- not enough for Mercedes Germany to be at home in Cali Concurrence: SotomayorContacts are enough (continuous and systematic action in forum), but no jurisdiction -- would be unreasonable to exercise power for an Argentina plaintiff v. German corporation Asahi approach: fail based on reasonableness -- no interest of the forum state and preserving the sovereignty of foreign jurisdictions, WWVW test: contracts - yes, reasonable-- no Harris v. Balk, scotus, 1905 // Debt goes everywhere with the debtor – debt is “carried” with the debtor // Quasi in rem jurisdiction—where the property is Shaffer v. Heitner, Shareholder suit //All cases of quasi in rem jurisdiction are set by the standards of international shoe Concurrence: Stevens Agrees with Powell for real property and concerned on the scope of the opinion.Concurrence/Dissent: Brennan Agrees with minimal contacts within the piece of property Yes for international shoe Disagrees with the court applying the minimal contacts test after striking down the sequestration statute (quasi in rem statute) Need to first look into the statute Need to look more into minimal contacts Even with limited contacts, could have a strong state regulatory interest, could be reasonable to bring the D to court Directors of the company, should not be surprised to be called into court in Delaware Quasi in rem jurisdiction may only be asserted when the interests of the persons in the property seized have sufficient contacts, ties, or relations to the state. Burnham v. Superior Court, Scotus, 1990, husband served in the state Tradition – this is literally personal jurisdiction – cannot be changed Concurrence Brennan Just because traditional doesn’t mean to cannot be changedInternational shoe is only for novel practices-- non-traditional practices of jurisdiction In rem jurisdiction-- specific jurisdiction, claim about the property in forum Court has jurisdiction over disposition of all property in its borders Quasi in rem (1)-- specific jurisdiction -- over the property in the forum Dispute between two specific people over property disposition Quasi in rem (2)-- claim has nothing to do with the property, general jurisdiction Jurisdiction over property holder based on property in an unrelated suit. Shaffer v. Heitner: now subject to min contacts test In personam-- can be either specific or general jurisdiction Jurisdiction over the person is appropriate if the D has sufficient contracts with the forum state Specific jurisdiction: Is warranted when D has sufficient contact with forum state to warrant asserting jurisdiction over him for matters arising out of his activity in the forum General jurisdiction: D can be sued there for any suit if their contacts are such that he is truly at home there is he domiciled there Challenging a courts exercise of jurisdiction over the person or property Raising the jurisdiction issue directly Special appearance Raising issue in answer Does due process always require the D have actual notice of the lawsuit Pennoyer, No, could have attached the property (in rem)-- idea that a property owner follows what is going on with their property -- don’t need actual notice May not always be possible to give actual notice, yet P is still present, and seeks restitution, don’t want to deprive P of their claims if the D made actual notice impossible Proving Notice and Opportunity to be heard Constitutional requirements for a judgment to be valid (under the due process of the law)(1) The parties receive adequate notice of the commencement of the action and the issues involved in it (2) The parties have an adequate opportunity at an appropriate time to present their side of the dispute Opportunity to be heard: D mist be given a reasonable opportunity to be heard – applies to provisional remedies Rule 4: Notice Must be reasonably calculated under the circumstances to apprise the interested parties and afford reasonable time to make an appearance Perfect notice not required, simply a reasonable attempt Rule: the notice must be reasonably calculated under all the circumstances to apprise the interested parties and afford reasonable time for them to make their appearance Perfect or “the best” notice is not required, must be a reasonable attempt to actually inform.Notice by certified mail is usually a good option.Publication as the sole method of Notice is only reasonable if you have no better means.Notification is left up to chance: People live outside the circulation area or may not notice the advertisement.A basic requirement is that the parties be named in the ad so they or their familiars are more likely to take notice.Other Types of Acceptable Service.Posting notice on someone’s door is not a good option (Greene v. Lindsey: They are ripped down by kids and easily interfered with.)Mailing notice to the prison is ok because notice is sent to them and prisons have processes to deliver certified mail. (Dusenberry v. United States)If mailed service is returned as undeliverable, another process must be attempted. (Jones v. Flowers)Whuchter v. Pizzuti: Implied consent still requires actual notice. A mortgage company or other third party with an interest in the transaction/property needs notice as well (Menyronites v. Adams)Actual or constructive notice See what the statute requires – does it comport with due process??Mullane v. Central Hanover Bank & Trust Co. scotus, 1950, Bank sent notice through newspapersNotice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.MULLANE BALANCING TEST To see if the notice provision comports with due processNotice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.Totality of the circumstances test Includes: Information about the suit // Reasonable time for them to make appearance Due regard for the practicalities and peculiarities of the case to know what is reasonably required Adequate notice under the Due Process Clause requires the government to make a reasonably calculated effort to apprise interested parties of a pending forfeiture of property. Sniadach v. Family finance Corp. of Bay View -- garnishment Does it comport with due process? Due process applies: taking away property, liberty or life Interim relief subject to due process after Sniadach Multifactor Test for seizure: The cases gestured towards a number of factors critical to the courts analysis, but did not assign weights to any of them: Who--whether a judge or clerk is the decision maker What--whether the party seeking relief has a pre-existing interest in the property to be seized or encumbered When--whether the seizure is affected before notice and hearing, or is followed by an immediate hearing after the seizure Why--whether the seizure is to establish jurisdiction or for security purposes, and if for security purposes, whether the exceptional circumstance such as destruction of an asset are presented How--whether the applicant must show probable cause or meet a lesser burden of proof; whether factual allegations must be sworn to under penalty of perjury and based on personal knowledge; and whether the dispute can be resolved by uncontested documentary evidence[Who/when/how] – Risk of error [What/Why] – P interest ?For cases: Use the Matthews balancing test framework and apply the factor (who/what/when) test inside it Mathews v. Eldridge, scotus, 1976 Court put forward balancing 3 factor balancing test(1) Private interest that will be affected by the official action (2) The risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards(3) The government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail Applied to private party actions through (Conn v. Doher) Chapter 4: Jurisdiction Over Subject Matter Of The Action Subject matter jurisdiction Diversity jurisdiction Citizenship of the parties at the time of the filing AIC Arising under Defined in Art 3. §2 of the constitution, laws of the US, treaties An important national interest Subject matter jurisdiction can be challenged at any time, cannot be created by consent, forfeiture, waiver or estoppel, court has independent obligation to make sure it has subject-matter jurisdiction ?State courts must hear federal subject matter jurisdiction claims Look in the complaint – is the cause of action something you can file in federal court. Possibility that there might be jurisdiction under federal questions – look to see if there is no federal issue within the state claim, that is: actually disputed // substantial // would appear on the face of a well pleaded complaint// wouldn’t accept the balance between state and federal courts ?Arising UnderFederal question? Cause of action arising out of federal law (constitutional requirements of Art III). Osborn, federal ingredient One of the parties in the case would have to rely on federal lay to establish either a claim or defense in the law suit or at least raise a federal issue while proving their case Statute requirement – 1331 -- arising under jurisdiction only applied if the P claim requires proof of federal law Interpreted through the well pleaded complaint from Mottley Need federal issue within the complaint (not the defense) Questions to ask: Does the federal question appear on the face of the well pleaded complaint Anticipation of the D defense is not enough Is the federal question actually disputed Is it substantial (worth the federal courts time) Would the federal court hearing the case upset the balance between federal and state courts as imagined by congress Mottley “well pleaded complaint rule” the court, in deciding whether the case arises under federal law for the purposes of 1331 asks whether the P would have to raise the federal issue in a complaint that includes the elements she needs to establish her claim and only those issues 1331: must be determined from what necessarily appears in the P’s statement of his own claim in the bill or declaration Merrell Doe: Federal jurisdiction may be proper in instances where there is a federal issue in a state cause of action, or when the suit arises under a federal law that creates a cause of actionMerrell Doe/Mottley Test: Is the federal law substantial in the complaint alleged by P? Is the claim disputed? Grable & Sons: (2005) a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law The embedded federal issue must be substantial to support jurisdiction Would the claim disrupt the balance between state and federal In determining jurisdiction, court only looks at what the plaintiff must establish Federal Question Jurisdiction: need ALLSatisfies Mottley (federal issue in well pleaded complaint)If the claim (federal issue) is substantial/serious/important/significant Would this disrupt the balance between the state and federal courts Is the claim actually disputed Jurisdiction over a common state law case? Discretionary jurisdiction over any claim that arises from the same nucleus as the federal case -- look to the heart of the matter United Mine workers v. Gibbs Common nucleus of the operative facts Cases in which P brought state law claim that depended on federal question issues: Smith, Gravel Diversity jurisdictionNeed citizens of different states PLUS amount in controversy 1332Strawbridge (1806) a case is not within 1332(a) unless there is complete diversity unless there is complete diversity between the parties (all P in suit are from different states then the D at the time the suit is brought) Art II, §2 allow diversity jurisdiction as long as some opposing parties to the action are diverse Determining citizenship: People: where are they domiciled (Mas v. Perry) Natural persons: domiciles (true home/intent to return) Corporations: citizen of every state where it is incorporated and where it has its principal place of business Nerve center test – where the control of the company is Principal place of business – 28 USC § 1332(c)(1)Hurtz Corp v. Friend – corporations ppb is the nerve center Corporate activities/operating assets test –citizenship in the state in which the corporation has the most activities Total activity test –located citizenship in light of all the facts and circumstances Banks Statute 28 U.S.C. § 1348 provides that national banks are deemed citizens of the states in which they are located National bank – where its main office is found as set out in the articles of incorporation Partnership/associations/anything not incorporated Citizens of every state that their partners are citizens of Green card holders – citizens of the state they are domiciled inAmount in controversy: must be higher then 75k Need good faith belief that that is the right amount Aggravation Can combine all claims against a single D if single and indivisible 1332(d) class action suits What law to use, federal or state?Hurn test: when does the state law claim provide an alternative ground for relief under the federal claim? Alienage Jurisdiction 1332(a)(2) – (a)(3)If at least one party is a citizen of a foreign nation, federal courts get jurisdiction THERE MUST BE COMPLETE DIVERSITY BETWEEN THE AMERICANS IN THE SUIT//can be minimal between the foreigners Between state and the citizens there of and a foreign state and the citizens of that State citizen on one side and state citizen of a foreign state on the other side Standard rule that federal courts do not have diversity jurisdiction over cases where there are foreign entities on both side of the action, without the presence of a state on both sides Major purpose of alienage jurisdiction is to promote international relations by assuring other counties that litigation involving their nationals will be treated at the national level, and alienage jurisdiction is also intended to allow foreign subjects to avoid real or perceived bias in the state courts--a justification that should not be available to dual citizensJoinder In Diversity/Alienage Actions1359: no jurisdiction where party without a real interest is joined to invoke/defeat jurisdictions Parties without a real stake (Rose v. Giametti) Assigning/selling right to litigate the dispute to diverse party Can’t move to create diversity 1332(c)(2): Legal reps are a citizen of the state their charge is a state of Removal Jurisdiction §1441 & 1446Procedure that allows a suit filed in state court to be transferred to federal – only D The federal court can exercise removal jurisdiction if it could have exercised original diversity jurisdiction on the day the suit was first filed in state court Diversity jurisdiction, in state D cannot remove Notice of removal must be within 30 days after D received complaint All D must join/consent to remove If the federal court could have exercised original jurisdiction over the case when it was filed, the D can remove to federal court. (§ 1441(a))RestrictionsP cannot remove.Basis must be in P’s well-pleaded complaint.Can’t be avoided using artful pleading.(a) removal is to the federal district the state court is located in.(b) Removal based on diversity of citizenship. (2) No removal if any D is a resident of the state where the action was brought.If diversity not complete at filing but becomes so: Fed. Ct. retains jurisdiction.(c) A case with federal and state claims can be removed if otherwise removable but-for the state claims.Procedure for removal of civil actions (§ 1446):(b)(1) Notice of removal shall be filed within 30 days after D received the initial complaint.(b)(2)(A) when a civil action is removed under 1441(a), all Δ must join in or consent to the motion. (c) if removal is based on diversity, Δ may remove within one year of initial filing, or longer if Π acted in bad faith to prevent removal.Rule 21 -- Court may sever any claim against parties./dismiss parties rather than dismiss the action Since Erie there is no federal common law – federal court are supposed to follow the common law of the state whose law they are applyingJoinder Rule 20: permissive joinder of parties, general rule for P and D Rule 14: adding third party defendant, indemnification/when joinder might not be feasible Rule 19: required joinder of parties Must be joined when The court cant accord complete relief in their absence Person claims an interest and deciding in his absence may: Impair/impede ability to protect interest Leaving an existing party subject to a risk Rule 24: intervention or right/permissive intervention – stranger to the lawsuit Rule 23: class action rules Rule 13: Compulsory counter claims 13(a) a pleading must state any counterclaim D has against P arising out of the same transaction/occurrence or series thereof as the main claim Compulsory counterclaims are under the courts supplemental jurisdiction Tests: Do both claims mostly have the same issues of fact and/or law Would res judicata bar a subsequent suit Do both claims use substantially similar evidence Is there a logical relationship between claim and counterclaim Gibbs – can ad a state law claim to the federal one as long as it has the same nucleus of facts Rule 18: joinder of claims Party asserting claims against another can join all claims it has against the same party Court can severe claims to protect parties substantive rights Claims that are too different or the trying of which would confuse the jury may be severed Supplemental Jurisdiction §1367When a court may exercise jurisdiction over a claim it otherwise couldn’t hear §1367: supplemental jurisdiction (overruled Finley) A-- common nucleus (adding on a claim) B-- no exceptions (if diversity, check against joinder rules) C-- discretion to decline – has to be exceptional ASK: Is there diversity jurisdiction If Yes, Claims by P against parties added under rule 14, 19, 20, 24 New P joined under 19,24 There is no supplemental jurisdiction over rule defined parties if it would be inconsistent with diversity jurisdiction Declining to exercise supplemental jurisdiction Judicial economy, fairness to litigants, convenience, 1367(c)No supplemental jurisdiction if original jurisdiction is based on diversity ad the exercise is inconsistent with the limits of diversity Impleader, joinder, etc. Chapter 5: Venue, Transfer and Forum Non Conveniens Venue State venue Most states follow the local action rule Actions local in nature (could not happen anywhere else) must be tried locally Esp. involving real property (Reasor-Hill v. Harrison)1390: venue scope1391 Venue generally – to determine venue// venue rule //residents The judicial district where any D resides The judicial district where a substantial party of the events/omissions or subject property is located If there is no proper venue under 1-2, it is based on personal jurisdiction over D 1401 – change of venue (when the first venue is appropriate) 1406 – original venue lacked proper venue Transfer 1404: original venue is proper, but there is a better one law of transforum will apply even after you remove it (retain the law of the original venue) Venue transfer for convenience Factors to consider: Convenience of the parties and witnesses The interests of justice Whether case could/should have been filed elsewhere Original venue law applied (Ferens v. John Deere) Forum selection clauses: A forum selection clause is valid and can result in transfer of the forum to that stated in the clause under 1404 P interest in his chosen forum is no longer considered The new forum’s law applies, because clause made old forum improper 1444: diversity jurisdiction retain the law of the original venue 1406: original court lacked proper venue to file case new venue law applies used when first venue is not proper Van Dusen v. Barrak: New forum law applies forum selection clause – P interest no longer considered, new forum law applies P and D can transfer The parties may waive the provision for mandatory remand because of the procedure of multidistrict transfer, but it must be clear and unambiguous Forum Non Conveniens A courts discretionary power to decline to exercise its jurisdiction where another court may more conveniently hear a case – cannot transfer, so dismiss Discretionary Separate from venue/personal jurisdiction/s-m jurisdiction Can be heard in another forum (can be dismissed in federal and brought in state or in another country)Factors to be considered in deciding a motion based on forum non conveniens 1. Private interest of the litigant 2. Relative ease of access to sources of proof 3. Availability of compulsory process for attendance of unwilling witnesses 4. Cost of obtaining attendance of willing witnesses 5. Possibility of view of premises 6. Enforceability of a judgment if one is obtained 7. Public interest a. Are dockets congested b. Burden on jury c. In state interest/foreign lawsGulf Oil Corp. v. Gilbert, 1947Factors of public interest: docket congestion, burden on the jury, foreign laws Piper Aircraft Co. v. Reyno , 1981 P may not defeat a motion to dismiss on grounds of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the P than that of the present forum.No presumption toward P choice, considered instead: Undermining of foreign regulator and interest Will D stipulate to foreign jurisdiction Are there corruption or equal protection issues in foreign court? Venue-Selection Agreements When parties have entered into a valid forum-selection clause that designates a federal venue, the case should be transferred to the designated district unless extraordinary circumstances exist that are unrelated to the convenience of the partiesAscertaining the Applicable Law State law in federal courts Rules of Decision Act: “Laws of the several states” are rules of decision in federal court unless preempted by federal law. (28 U.S.C. § 1652)Original Interpretation, Swift v. Tyson: Federal Courts are not required to follow state common law. Swift v. Tyson, rejected by Erie, allowed federal general common law Erie v. Tompkins, 1938, when federal court must apply state law to disputes No federal general common law have to look to the constitution/statutes to enact federal substantive law Erie Doctrine In a diversity action the court must follow the substantive rules of the state in which the court sits Outcome determinative test The goal of the outcome determinative test is to ensure (1) that the outcome would be the same in either federal or state court (2) that litigants have another tribunal, not another body of law (Guaranty Trust Co v. York—held that federal courts must follow stature of limitations in state laws)A federal court, exercising jurisdiction based strictly on diversity, must abide by any state legal rule that would be outcome determinative if held in state court In diversity jurisdiction, hearing a state law claim, federal court has to apply the state law if the state law seriously alters the results Interest Balancing Test (Byrd v. Blye Ridge Rural Electric)Have to follow state rules that are bound up with state substantive law (like the cause of action) If the state law is substantive, (governing the rights and obligations) then the state rule applies If the state rule is procedural (governing the forms and modes of enforcement) then the federal court asks whether it is “outcome determinative” If not, federal rule applies If outcome determinative, the fed court determines whether a federal interest exists that outweighs the state interest State laws cannot alter the essential function of federal court (if significant interest of the federal system, apply federal law) Have to follow state rules that are bound up with the state substantive law Bryd balancing test to determine when state law should displace federal law in a diversity claim Hannah v. PlumerRule must relate to “arguably procedural matters”, not substantive onesDoes change in rules unfairly cause character/result of litigation to materially differ based on: Equal protection issues Influencing P forum choice Congress has the power to enact rules if they are arguably procedural Rules enabling act, Congress authorizing Scotus to enact rules of fed pro for federal courts Ask if procedural under the rules enabling act, if is, use Judge-made rules Byrd v. Blue Ridge: Apply where (1) the rule is procedural, not substantive and (2) the federal interest in their application outweighs the state interest.Is it procedural or substantive?Outcome Determinative Test: If change would significantly change the outcome, the rule/law is substantive even if the state treats it as procedural. Federal and State courts should provide the same outcome in each case.Guaranty Trust v. York: Suit for breach of contract barred by the state statute of limitations. SCOTUS: Statute of limitations are substantive because they limit one’s right of recovery and have a determinative effect on the case outcome. Is the rule bound-up in your rights and obligations in such a way that application is required?Does Federal interest in applying its own rules outweigh the state interest here?If the rule is an essential characteristic of the federal courts, the federal rule applies.Rule 9: pleading of special matters (Kerns v. Ford) special pleading requirements for fraud applied where the federal court was trying a fraud claim based in state law Rules enabling act: gives scotus power to promulgate rules of practice/procedure so long as they do not abridge, enlarge or modify any substantive right Modern Pleading Rule 3: action starts with a complaint with a court Rule 4: service of process and reach of federal courts of P. Jurisdiction Rule 5: service of papers Rule 6: Time Rule 7: pleadings allowed Complaint//answer//reply//motions and other papers (motions –requires for court orders//pleadings—sets forth claim for relief, affirmative or defensive)Rejection of old writ system Rule 8: general rules of pleading Short and plain statement of claim showing pleader is entitled to relief Requirements for pleading Requires D to respond to the complaint (admit, deny, plead insufficient)Rule 8: What must a complaint contain?A short and plain statement (1) of the grounds for jurisdiction, (2) showing a claim for which Π is entitled to relief, and (3) demanding the relief sought.Rule 12(b)(6): Noncompliance results in dismissal for Failure to State a Claim. Original Interpretation – Conley v. Gibson: A complaint will not be unless it appears beyond doubt that Π can prove no set of facts to support claims. Only enough detail to give fair notice of the claim and the grounds upon which it rests. Specificity in facts is not required.Modern Interpretation – Bell Atlantic v. Twombly & Ashcroft v. IqbalThe complaint must state a plausible claim shown by the facts.More than conceivable but less than probable.Facts are given the presumption of truth.Legal conclusions and “bare recitations of elements” are ignored. Ex. Ashcroft: if the statute requires the person had knowledge, stating that they had knowledge is a restatement of the elements, not a fact. Failure to state a specific legal theory or to cite a specific statute is not enough to dismiss. (Johnson v. City of Shelby, Ole Miss)Demand for relief: Must state the relief sought, specifying any special relief (relief unusual for the type of action).Rule 54: Default judgement is limited to relief stated in the complaint. Otherwise, court awards all damages a party is entitled to.Rule 9: special pleading rules for fraud, mistake, and related matters (concern of the reputations damages on non-merit claims) Rule 10(b): requires pleading to contain numbered paragraphs so its separate counts Conley v. Gibson FRCP just need a short and plain statement of the claim that will give the D fair notice of what the P claim is and the grounds for which it rests (Rule 8) Complaint will be dismissed if it appears beyond all doubt that P can prove no set of facts to support the claim Rule 12: Response (to any complaint) Answer: responds to the complaint on the merits Must address every allegation paragraph in the complaint (affirm/deny //failure to address a paragraph is considered a concession of its truth // blanket denial is okay//deny knowledge sufficient to admit or deny a paragraph) Rule 12(b): how to present defenses Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted Rule 15: Amending complaints Bell Atlantic Corp. v. Twombly Have to draw all inferences in favor of the P // Factual statements v. legal conclusions // Complaint needs to be plausible Assessing the complaint under Rule 8What are the claims/are there legal conclusions Elements of those claims Factual allegations concerning each of the elements Ashcroft v. Iqbal Rule 8: factual sufficiency of the complaint // Plausibility standard Identifying allegations in the complaint that are not entitled to the assumption of truth Iqbal and Twombly 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. Facts in the complaint must show P claims’ are plausible Non-conclusionary facts are given presumption of truth Bare recitation of the elements and conclusory allegations are ignored Bell Atlantic v. Twomply & Ashcroft v. Iqbal Failure to state a specific legal theory or cite a specific statute not enough to dismiss (Johnson v. Shelby). Higher burden for circumstantial evidence now After separating out the conclusory allegations, then you see what's left and see if that moves the claim from conceivable to plausible. Will be very context specific If the complaint satisfies the plausibility standard Kearns v. Ford Pleading special matters (Rule 9) Make sure to plead facts with specificity unless you have a good reason Think about the who, what, when, where, why, how and put as many facts in as you can to satisfy Twombly and Iqbal and Rule 9(b) Rule 12(a) gives D 21 calendar days from the date of service of a complaint to respond (b) Defenses (f) order the striking of scandalous material Some defense have to raise in answer/motion-- objection to PJ/venue/service of process Rule 15: amending (c) Relation back where the statute of limitations has run Krupski v. Costa Crociere SPC (cruise case)rule 15(c)(1)(C)(ii) asks what the prospective D knew or should have known during the Rule 4(m) period, not what the p knew or should have known when filing original complaint Relation back under Rule 15(c) does not depend on the amending party’s knowledge or timeliness.Have to go through the elements of the rule Relation back: amendment changing party relates back if the new party Is transactionally related to the original filing Timely notice under 4(m) New party had notice of the action and knew/had reason to knew it should have been named Supplemental Pleadings Rule 15: amended and supplemental pleadings A supplemental pleading can be used to cure defects in the original pleading, to add new claims, or to provide additional facts that update the complaint If the test of 15(c) is met, a supplemental pleading should ordinarily be given the same relation back effect as an amended pleading Rule 13(e): permits D to use supplemental pleading to assert counterclaims that arise after filing an answer Chapter 8: Joinder of Claims and Parties – Expanding the Scope of the Civil Action Joinder rules Permissive rules Give the litigant the option of joining parties and claims in a single lawsuit Mandatory rules Require the litigant to do so. Rule 17: real party in interest is mostly decided by statute. Court can dismiss for failure to name the real party in interest after a reasonable time for him to ratify/join/substitute in Rule 18: removes all obstacles to the joinder of claims and permits the joinder of both legal and equitable matters Sporn v. Hudson: negligence and malicious prosecution are too different, would confuse the jury because they require different evidence/testimony/rules/lawRule 13: counterclaims // (a) compulsory counterclaim (b) permissive counterclaim Rule 42(b): allows the court to sever claims and authorizes separate trials of claims/issues Convenience/expedite cases/avoid prejudice – very context specific Do the facts have to be identical for a claim and counterclaim? No, but substantially the same -- claims are all about the same event Can be a series of occurrences with a logical relationshipCounterclaim may embrace additional allegations, but substantial overlap Compare to the Gibbs test (Supplemental jurisdiction) Related claims arises out of the same occurrence or common nucleus of operative facts Substantially similar enough to try them all in one case Ask: Is a counterclaim compulsory or permissive? Do you need supplemental jurisdiction over that counter-claim? If compulsory counterclaim, satisfies the supplemental jurisdiction test (same transaction/occurrence) If permissive counterclaim, doesn’t arise out of the same transaction, requires an independent basis for jurisdiction on it own Judicial decisions suggest four interrelated but different tests for determining whether a claim arises out of the same transaction or occurrence? Are the issues of fact and law raised by the claim and counterclaim largely the same? Would res judicata bar a subsequent suit on the D claim absent the compulsory counterclaim rule? Will substantially the same evidence support or refute the P claim and the D counterclaim?Is there any logical relation between the claim and the counterclaimRule 20: Permissive joinder of parties promote trial convenience and expedite the final determination of disputes thereby preventing multiple lawsuits Governing permissive joinder of plaintiffs, provides that persons may join in one action as plaintiffs if (1) They have asserted a right to relief arising out of the same transaction or occurrences and (2) A question of law or fact common to all the parties will arise in the action. Done on a case by case approach -- no rule Rule 21: misjoinder Rule 19: Mandatory joinder of parties (a) A court should proceed without a party who should be joined if feasible, without ruining s-m jurisdiction, if, after examining (1) The interests of the plaintiff in having a forum, (2) The interest of the defendant in avoiding multiple lawsuits or inconsistent outcomes, (3) The interest of the party who is possibly being joined, and (4) The interest of the courts in efficiency, the court determines in equity and good conscience that proceeding is appropriate. This is not about substantive right -- see if they are a necessary party under 19a, if not go to 19b, if not, look to go to another court Provident Tradesman Bank v. Deutcher: trial already occurring = high interest in enforcement of judgment // outside party could have acted sooner/intervene but did not Impleader Rule 14: allows a D to bring in a 3rd party who may be liable to the D for part/all of the claim against the D Has to be based on the original claim P brought against D Jeub v. B&G foods: under Rule 14(a)(1), D can implead a 3rd party even if 3rd party liability does not legally begin until judgment for the P is rendered Interpleader (They All Want Your Box!) Basic Definition: D can interplead all claims by different P against a single right/piece of property into one proceeding.State Farm v. Tashire: Ins. Co. can implead all P claiming $20k payout under policy, but not all claims against insured exceeding it or against other Ds not insured by it.Liability limit only applies to Ins. Co., not to any of the other Ds.Rule-based (Rule 22 & 28 USC 1391)If Original Jurisdiction is based on Diversity, must have complete diversity between all Ps and all Ds. Amount in controversy: $75,000.01 if Diversity JurisdictionVenue: Where interpleader resides, all interpled reside, or where claim arose. (28 USC § 1391)Disposition of Property: D keeps while trial pending.Service of Process: RULE 4.Statute-Based (28 USC §§ 1335, 1397, & 2361).§ 1335Minimal diversity (any party different from any other)Amount in controversy: $500+Disposition of Property: Deposit with court, or bond for its value posted.28 USC § 1397: Venue is where at least 1 claimant resides.28 USC § 2361: Nationwide service of process.Rule v. Statutory interpleader (both are for federal) -- different ways of doing interpleader in federal court, can pick and choose assuming you meet the requirements ?Rule Statute SMJComplete diversity or arising underMinimal diversity -- jurisdictional statute AIC75k in diversity500Venue28 USC 1391 (district interpleader resides, all the interpleading reside, or claim arose) 28 USC 1397 (any district where 1+ claimants resides) StakeMay generally keep itDeposit with court or post bond Svc of processRule 4 -- often keeps you in the district, follows the service of process rules of the state 28 USC 2361 (anywhere in the US) Use of interpleader to confine the litigation to a single forum and proceeding is appropriate when there are multiple claimants to the same fund, and a stakeholder must acknowledge liability to either of the claimants.Intervention (Hey, I Want A Piece Of This Action)Rule 24: allows a stranger to the lawsuit to interject himself into the action Right to intervene if: (1) Statutory right; or (2) Interest related to suit that may be impaired and is not adequately protected (b) (1) permissive intervention if: (A) Conditional right or (B) Common question of law or fact ?Intervention is appropriate when (1) The moving party has an interest in the outcome of the case, (2) That outcome may impair the party’s ability to protect its interests if it does not intervene, and (3) The party is not otherwise adequately represented in the case. Smuch v Hobson: school board decides not to appeal, parents have the right to intervene due to interest in children edu. NRDC v. New York State, state is adequately representing interest if it is litigating vigorously based on all possible arguments ConsolidationRule 42: Consolidation –common questions of law/fact, court can consolidate the actions – cases retain separate identity, just have the same ruling. Limited to actions pending in the same district, can appeal separately State courts have joinder and consolidation rules similar to federal system-- cannot change states to consolidate -- can switch to federal to transfer and consolidate if jurisdiction§1407: Petition the judicial panel for multidistrict litigation to transfer cases with common fact to a single district court (think drug cases) Adjudication Without Trial Or By Special Proceeding Rule 56: Summary judgment allows a court to enter judgment as a matter of law if there are no material issues of fact in the disputeAny party can move for summary judgment Moving party for summary judgment must show no issue of material fact as alleged in the complaint Gives court a lot of discretion Summary judgment is designed to afford the parties a just, speedy and inexpensive resolution to their controversies.Scott v. Harris: STANDARD: Movant must show that no reasonable juror could rule for the non-moving party taking the evidence in the most favorable light to the otherNon-moving party need to show some evidence that there is material fact Adickes v. S.H. Kress Adickes placed the burden on the moving party to foreclose the possibility of material dispute-- even if the P would have that burden at trial -- court was worried that without the burden parties would routinely file motions for summary judgment Celotex Corp. v. Catrett, Moving party must present (1) Affirmative evidence or (2) showing of insufficiency/bad evidence in the record.Non-moving party must present affirmative evidence to overcome beyond what is in the pleading.White’s Concurrence: Movant’s burden is to present affirmative evidence or be very specific in showing where P produces no evidence for the claim.Brennan Dissent: Conclusory allegation of absence of evidence by the movant is not enough. Movant need not present affirmative evidence, but must make an affirmative showing of non-movant’s absence of evidence.Evidentiary standard to be used at trial: Anderson v. Liberty LobbyCourt must use the evidentiary standard to be applied at trial.Should not be granted even if there is the slightest doubt as to material facts.Material Fact: Any issue of fact the non-moving party must establish in order to prevail based on the law.Motion may not be filed more than 30 days after the end of discovery.Rule 56: Establishing a burden shifting approach -- moving party cite specific parts in the record to show there is no material facts in the dispute or submit affidavit All facts are viewed in light most favorable to the non-moving party unless no reasonably jury would be able to accept that version of the facts Chapter 15: The binding effect of prior decisions – Res judicata and collateral estoppel Same transaction, same parties -- res judicata // claim preclusionSame transaction, same/new parties -- issue preclusion // collateral estoppelRes Judicata // Claim Preclusion Split into the two cases Forecloses a party (or their privities) from bringing the same cause of action when they have a first one that has a final judgment The case is resolved, any claim brought or should have brought in the first case is done Provides that a final judgment on the merits of an action excludes the parties (and their privies) from re-litigating claims that could have been brought in a previous suit Judgment needs to be proper (have PJ, s-m J, judgment need to be final) In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? It is the facts surrounding a particular occurrence that operates to make up a claim, not the legal theory upon which a plaintiff relies.Coupons/notes can be detached and claims separately Preventing re-litigation as a whole Efficiency and giving the parties closure All issues that were resolved/what issue could have/should have been resolved Use it or lose it A party who is not bound by the previous action may assert a plea of res judicata against a party who was bound by the previous action General rule in federal system (and most state) is that dismissal for failure to state a claim carries claim preclusive effect If dismissed with prejudice – final judgment The federal court may have claim preclusive effect on subsequent state court actions and it’s a question of federal common law. (Semtek International Inc v. Lockheed Martin Corp). Adjudication on the merits is necessary but not sufficient for claim preclusive effect Cannot bring in the same claim under a different legal theory Mathews v. NY Racing –no separate suit stemming from the same transactionNecessary decision test: Synanon Test: -Did the parties and judge recognize the issue as important and necessary to judgment? Issue Preclusion // Collateral Estoppel Split into the two cases Preventing the re-litigation of individual issues Just check off different requirements Was the issue actually litigated Was the issue necessary to the decision (Synanon Test)Who issue preclusion applies to: The parties in the first suit and their privies Non-mutual defensive preclusion – invoke by D2 against P from case 1 Non-mutual offensive preclusion –invoked by P2 against D1, based on ruling in case 1 Virtual representation Will not preclude the re-ligation of issues that were not actually litigated in the first case Taking the judgment of a previous case and using that instead of litigating the issue 2xFor issue preclusion to apply The issue in the 2nd case must be the same as the issue in the first case The issue must be actually litigated and decided The decision on the issue in the prior courts was necessary to the courts judgment Unmixed questions of law are not subject to issue preclusion Question of law Interpreting what a statute/common law principle/constitution means Not specific to the parties Question of fact Party/case specific and what they are arguing based on their case Based on evidence Question of mixed law and fact Everything else that cannot be defined as strictly a question of law or factThe application part -- when applying the law to the facts Defensive non-mutual collateral estoppel The structure of non-mutual issue preclusion P v. D1 -- D1 wins P v. D2 -- D2 can assert the judgment in favor of D1 assuming the issue is identical to suit 1 and final judgment decided on the merits Same P different D, essentially the same case Blonder-Tongue v. Uni of ILOffensive use of estoppel Rather than D trying to prevent another claim coming, its P using a previous judgment to prevent litigation of a previous issue that was litigated -- a sword not a shield Parklane Districts court discretion if it recognizes offensive non-mutual issue preclusion Considerations: Could the P have easily joined in the first action Unfair to D // how much was at stake in the first suit, if new procedural opportunities are available to D Offensive v. Defensive Defensive Precludes a P from relitigating identical issues by merely switching adversaries Gives P strong incentive to join all potential D in the first action if possible (if they lose, cannot try again against another D) Offensive Creates the opposite incentive Since a P will be able to rely on a previous judgment against a D but will not be bound by that judgment if the D wins, the P has every incentive to adopt a "wait and see" attitude in the hope that the first action by another P will result in a favorable judgment No reason to join the first suitLikely increase the total amount of litigationsUnfairness to D Small suit could lead to massive suit // Procedural advantages // Jury // What if there is 100 P same D, mass tort, - concern with inconsistent judgments Big exception to non-mutual collateral estoppel is it does NOT apply against the federal government Judgments By Nontraditional Tribunal Administrative decisions are entitled to preclusive effect with conditions If Procedures used by administrative tribunal are adequate for judicial procedures Between agencies Generally the decision of agencies within the same government will bind each other unless they have very different functions (so different that you wouldn’t expect one to speak for the other) A final judgment retains all of its res judicata effects pending resolution of an appeal of the judgment.Litigation conducted before one agency or official is generally binding on another agency or official of the same government because officers of the same government are in privity with each other Need to determine whether the two agencies are in privity with each other as to allow issue preclusion against a nonparty to a judgment Are there important differences in the authority of the respective agencies Binding Non-PartiesA claim cannot be precluded if the previous litigant is a different party and there is no legal relationship between the current and past litigants.Court only recognized two circumstances where issue preclusion can be used against a nonparty If the court uses special procedures to protect the nonparties interest An understanding by the concerned that the first suit was brought in a representative capacity Intersystem Preclusion Art 4. FULL FAITH AND CREDIT Requires that state court recognize the judgment of other state courts 1738: state judicial proceedings have the same full faith and credit in every court in the US (includes federal) Transactional test to res judicata – forum 2 will recognize the transactional approach of forum 1 HYPO: First lawsuit in MI state court, Second in MI federal court 1738: preclusive effect of the judgment of the rendering court will have preclusive effect in the federal courts First in Fed, re-files in State Not addressed by Art. 4 and 1738 Supremacy clause, requires the state courts to respect the federal court decision General assumed under 1331 that state court should use the federal rule of preclusion in a case of federal question Semtek International v. Lockheed Martin Requires courts to apply federal common law to determine the preclusive effect of an earlier judgment of a federal court that exercised diversity jurisdiction, but the federal common law rule adopts the rule of preclusion of the state in which the federal diversity court satDecided the appropriate rule of claim preclusion to apply to a diversity judgment Rule for federal court sitting in diversity -- same preclusive effect of a state court judgment of the state in which the court is sitting Done though federal common law Different rule in each federal court depending on the state in which they sit Not a general uniform federal rule for claim preclusion State law claims -- want to prevent in diversity jurisdiction, forum shopping (from Erie) Exception: If the state rule in incompatible with the federal interest (hard to even picture) Just follow the state law on claim preclusion ................
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