Civ Pro Q & A for Past Years

http://news.yahoo.com/s/ap/20070921/ap_on_fe_st/odd_suing_god_7;_ylt=AtfOUFKQaVT46l76_.4MIAYE1vAI

What forum would be proper to sue God? I saw that article and had to forward it on to you.

A.
Federal subject matter jurisdiction? Unlikely. Didn't look like he was suing under federal law and neither diversity nor alienage jurisdiction would apply (God is not a citizen of a State nor is he a citizen or subject of a foreign state). It would probably have to be in state court.

There was a case in which someone sued Satan. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa. 1971). (The opinion is a denial of an application to proceed in forma pauperis.) Federal subject matter jurisdiction in this case was under 28 USC 1331, since Satan was being sued under 42 USC 1983 for violation of the plaintif's constitutional rights. One problem noted by the court was service, although I suppose you could ask it to approve service by publication. Another problem was PJ. Another was failure to state a claim, since Satan is not a state official (that I know of).

In any event, your guy should watch out for Rule 11 (or its Nebraska state law equivalent). Just because you can sue anyone does not mean that you can't be sanctioned for doing so.

Q. 7. Question about Shaffer.

Hi Professor Green,

I have a few questions concerning the material taught today. As I can't attend the review sessions - I thought id put them in an email. Perhaps I can come to your office at some other time.

You mentioned in class that Shaffer, created a fourth theory of jurisdiction, but throughout the Shaffer case the majority judgment appears to be applying the minimum contacts standard of International Shoe, and therefore they find that the necessary contacts were not substantial enough to create jurisdiction. Therefore isn't the idea that this fourth category of jurisdiction, i.e. that D could reasonably have anticipated jurisdiction based on his activities, merely support for the application of International Shoe (i.e. further evidence of connection or not) or alternatively obiter dictum rather that a new theory of PJ on its own?

A.
I agree that there is nothing in Shaffer itself that requires the fourth theory. Their refusal to grant PJ can be understood in terms of the standard Int'l Shoe approach. The problem is future cases. First of all quasi in rem is still allowed in connection with bank accounts and real property and it is hard to see how the contacts in such cases are substantial and continuous enough to allow PJ for unrelated causes of action. Second, there is the problem of tagging, where the contact often is clearly not substantial and continuous. In both these cases this fourth theory starts playing a role. We will see this in Burnham.

Q. 8. Question about PJ over a number of defendants.

Prof. Green,

I had a question over something I cannot find in my notes. It is based off a hypo in tomorrow’s reading.

Bob is from Ohio and goes to the circus in Maine. He gets attacked by a tiger. Bob sues Kelly, who lives in Florida, for not checking to see if the cage was locked when in Maine. He also sues Dave, who lives in Vermont, for not locking the cage originally in Vermont.

Assume the court held PJ would not be proper for Dave in Maine, because his negligent act took place in Vermont and he had no minimum contacts with Maine. Where would be a proper forum for the case?

A. I guess Dave does not travel with the circus, otherwise he would have been present in Maine later and this presence would be sufficiently related to the cause of action (even though he didn't make the cage-mistake in Maine) for there to be PJ over Dave in Maine. After all, Dave didn't fix his Vermont mistake while he was in Maine.

Furthermore, even if he did not travel to Maine, there still might be PJ over Dave in Maine, since he created a defect in the cage that he knew was going to travel with the circus to Maine. There is at least an argument for PJ here.

But let's assume there is no PJ over Dave in Maine. That means that there is no place where Kelly and Dave can be sued together (unless Bob can tag Dave on a trip to Maine or find some property of Dave's in Maine etc.). That means that there has to be separate lawsuits - one against Dave and one against Kelly. That happens sometimes.

Q. 9. Question about sua sponte dismissal on venue grounds.

A number of you have mentioned an inconsistency between what I said in class a bit back about sua sponte dismissals on venue grounds and what Glannon says on p. 144 (Q. 5).

A
What Glannon primarily says there is that he thinks sua sponte dismissals on venue grounds should be OK, because the purpose of the venue statute is not merely to prevent inconvenience to defendants but also to allocate judicial resources to a federal court with some connection to the case. I agree that the venue statute has this purpose. Glannon fails to note, however, the waivability of venue, as spelled out in FRCP 12(h), which suggests that sua sponte dismissals are not OK.

The real question is how many cases are on Glannon's side. He cites a Supreme Court case (Gulf Oil v. Gilbert), but that case is one in which the court dismissed on forum non conveniens not venue grounds, and in which the defendant requested dismissal. The dismissal was not sua sponte. Glannon merely cites it for the airy proposition that certain private and public interests might make a court an inappropriate place for litigation.

The truth is that Glannon has some cases, and so do I, but that more are on my side. Glannon notes that several cases have said that dismissals sua sponte are not OK. In this connection he cites Wright & Miller, which also largely backs up my view: "Since an objection to venue is a personal privilege of the defendant, the burden is on the defendant to object in a proper and timely fashion if he thinks venue is improper. The failure to raise the objection properly is a waiver of the defense. Because of the waiver principle and the personal nature of the defense, it generally (but not always) is thought inappropriate for the district court to dismiss an action on its own motion for improper venue if there has been no objection from the party for whose benefit the privilege exists. However, some courts occasionally say that the objection may be raised sua sponte under extraordinary circumstances." 15 Wright & Miller 3826.

As Wright & Miller note, some courts of appeals have hedged their bets. Although striking down the trial court's sua sponte dismissal, they have suggested that a sua sponte dismissals on venue grounds might be OK in "exceptional circumstances." Concession Consultants v. Mirisch, 355 F.2d 369 (2d Cir. 1966). They did not say exactly what these extraordinary circumstances might be.

But I was able to find a case in which those exceptional circumstances were held to exist. In Stich v. Rehnquist, 982 F.2d 88 (2d Cir. 1992), the plaintiff filed suit against all nine justices of the United States Supreme Court and others alleging a conspiracy dating back to 1963 to prevent enforcement of air safety laws and alleging that the defendants exploited the plaintiff's marital difficulties in order to deprive him of his property. Without waiting for any of the defendants to assert the defense of improper venue, the trial court simply dismissed sua sponte on venue grounds and this dismissal was upheld on appeal. Christopher v. U.S., 2001 WL 1256915 (N.D. Cal. 2001) is a similar case of a crazy plaintiff (in this case suing the US, the Sect'y of the Navy etc.) in which sua sponte dismissal on venue grounds occurred (basically as a way of getting rid of the case without bothering the VIP defendants)..

But Wright & Miller do cite a few cases that go Glannon's way even though they do not involve crazy plaintiffs suing VIP defendants. Nevertheless, the majority of the cases discussed there reject the sua sponte dismissal.

Finally, it is OK, for the court sua sponte to transfer the case to a better district. This is clear from 28 USC 1404(a).

Q. 10 Questions about Allapattah scenarios

After the discussion of Allapattah in class I had some hypotheticals about Kennedy's "infection" (I wouldn't be surprised if these come up

eventually in class).

These would all be state law claims (SMJ through diversity under §1332 and the P2 action would be the same constitutional "case or

controversy"):

P1 (NY) sues D (NJ) for $100k. P2 (NJ) joins and sues D for $25k.
(Joined suit is not diverse and below the jurisdictional minimum).

A. No suppl jur.

P1 (NY) sues D (NJ) for $100k. P2 (NJ) joins and sues D for $100k.
(Joined suit is not diverse but above the jurisdictional minimum).

A. No suppl. jur.

P1 (NY) sues D (NJ) for $100k. P2 (NY) joins and sues D for $25k.
(Joined suit is diverse but below the jurisdictional minimum).

A. Suppl. jur. But notice if it was P(NY) sued D1(NJ) for $100K and D2(NJ) for $25K there would be no suppl jur for P's suit against D2!

P1 (NY) sues D (NJ) for $100k. P2 (NY) joins and sues D for $100k.
(Joined suit is diverse and above the jurisdictional minimum - has
it's own source of SMJ?)

A. Yes - its own source of SMJ

Q. 11 Question about quasi in rem and general PJ

1. We discussed in relation to Pennoyer that when litigating quasi-in-rem actions, you could only litigate up to the value of the property. Anything beyond that would have to be brought in a different suit. Is this still applicable?

A. There are a couple of questions here. First of all, let us assume that the case is one that would satisfy the concerns expressed in Shaffer. The property would have to be something like real property or a bank account (not stock considered by law to be located in the forum state).

Now one question to ask is whether *under state law* in such cases PJ is asserted only up the value of the property. The answer is yes. This is still common.

The more tricky question is whether as a constitutional matter PJ *must* be limited to the value of the property. That's hard to say. The SCt has never said anything more on this. I could imagine arguments on either side. Someone might say that the only reason that PJ is OK in quasi in rem cases post-Shaffer is that the property is a substantial and continuous contact with the forum state allowing for the D to be sued on any cause of action. This argument appeals to the standard for general jurisdiction spelled out in Int'l Shoe. But if that is true then why should PJ be, as a constitutional matter, limited to the value of the property?

On the other hand, one might say that the real reason that there is quasi in rem PJ through real property or bank accounts is that one can reasonably anticipate PJ (and one couldn't in Shaffer). But if that's true one might say that one can reasonably anticipate PJ only up to the value of the property. that would limit PJ up to the value of the property as a constitutional matter.

2. Can you get general personal jurisdiction over a person? In Perkins the court said that there was general personal jurisdiction for the time that the company was located in Ohio. Therefore any causes of action that occurred during that time period could be brought in Ohio. If a person was domiciled in a TN for 10 years and then moved, could you sue them in TN for causes of action that occurred during those 10 years? (assuming the statute of limitations was still in play)

A. This too is a complex question. First of all, the Perkins court did not say that there was general PJ over the company for actions arising during the time it was located in Ohio. The cause of action at issue arose before the war, that is, before there were any Ohio activities at all. But that's not a problem. There is general PJ over a corp if the corp has subst continuous contacts with the state. If there is general PJ, you can sue that corp on any cause of action, whenever it arose. It does not have to arise during the time there were subst continuous contacts.

Let's move on to the question of general PJ over an individual. First of all, there can be general PJ over an individual through tagging. If tagged you can be sued on any cause of action at all. What about domicile? Well if the state is your current domicile, there is also general PJ. You can be sued on any cause of action at all.

Now what if you were domiciled from 1995-2005 and now have left. Can you be sued for causes of action arising during that period? Let us first set aside cases of specific jurisdiction. You can clearly be sued in that state for activities *in that state* that occurred during the ten year period. But can you be sued concerning causes of action that arose during the ten year period but did not arise in that state? In other words, is there general PJ over you? The answer is...NO - although you are very perceptive to have worries here, since PJ would appear from the language of Int'l Shoe.

The same point applies to corps. If a corp has substantial continuous current contacts with the forum state, there is general PJ and it can be sued on any cause of action. But if all the subst continuous contacts are in the past, there is no general PJ, not even for causes of action that arose during the period that there was subst continuous contacts. The only source of PJ is specific, by arguing that the cause of action is related to one of those past in-state contacts.

Q. 12 Question about Twombly.

I was looking through my notes and wanted to make sure I had the

distinction between Sierocinski and Twombly correct.

Sierocinski made conclusory allegations that added up to a claim.

Essentially, he said that DuPont was negligent in manufacturing and

distributing a blasting cap that would explode when used under normal

circumstances. In Bell v. Twombly, the plaintiff made a conclusory

allegation that did not state a claim because they alleged that

parallel conduct on its own constituted a violation of the Sherman

Antitrust Act. As I understand it, the distinction is that if

Sierocinski's allegations were correct, DuPont was certainly

negligent. Bell's allegations, however, could be true and still not

be a violation of the Sherman Act b/c parallel conduct could occur

without the two parties agreeing or conspiring to do it. Is that

correct? If so, it seems that the plaintiffs could have made a very

broad allegation about when or how the baby bells agreed to their

alleged non-competition (subject to Rule 11, of course) to cure their

complaint. Why didn't the plaintiff's attorneys amend their

complaint in that way?

A. I pretty much agree with everything you say about Twombly. But you miss out on the following statement from footnote 10 of Souter's opinion: "FN10. If the complaint had not explained that the claim of agreement rested on the parallel conduct described, we doubt that the complaint's references to an agreement among the ILECs would have given the notice required by Rule 8."

So it looks like if there had been a bare allegation of an agreement (and the parallel conduct was just thrown in as some evidence of the agreement), there would have been a failure to satisfy 8(a). That's why the plaintiffs didn't bother to amend. And that's why I said that Twombly is really about 8(a), not failure to state a claim. It looks like the pleading requirements under 8(a) have been increased, at least for antitrust actions.

Q. 13 Question about relation back and compulsory counterclaims

I have a question about relation back for compulsory counterclaims.

I have in my notes that relation back only applies to amendments.

Does this mean that if P files a complaint against D for damages in a

brawl on the last day permitted by the statute of limitations, D

cannot bring his compulsory counterclaim for his own damages in his

answer? I see the arguments on both sides of this, but I wanted to

make sure I had this correct. Even compulsory counterclaims are not

saved by relation back--only amendments to pleadings or motions.

A. The language in 15(c) applies only to amendments. So it looks like one cannot, technically, use that provision to save the compulsory counterclaim. But courts have considered them saved anyway if they satisfy the standards in 15(c). Or rather they consider them saved, provided that the compulsory counterclaim would have been within the statute of limitations had it been brought at the time of the original complaint. (There is an argument that the compulsory counterclaim would be saved even if the statute of limitations for the counterclaim was shorter than the statute of limitations for the plaintiff's original claim, such that the counterclaim would have been outside the statute of limitations if it had been brought at the time of the plaintiff's original complaint. We discussed this is class. But I cannot find a case accepting this.) OK?

Q. 14 Question about waiver and counterclaims.

Dear Prof. Green,

In looking over the questions about counterclaims, I came across something that I have no notes on. You asked the following question:

Assume that P sues D for battery in fed ct. D answers, asserting defense of insuff. service and joins a counterclaim for his own damages in the brawl. P argues that D has waived defense of insuff service by counterclaiming. Result? Is this questions answered by FRCP 12(b): "No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion"?

I know that courts have found that the assertion of even a permissive counterclaim will not defeat a defense like venue or PJ in the same responsive pleading, but I guess I am wondering about the last part of the question, on whether it is answered by R. 12b.

My feeling is that this can be used as analogy, but the better explanation is the "use it or lose it theory," where if you don't use a compulsory counterclaim, you will lose it later, and should not be punished for using it now.

Is this line of reasoning in explanation correct?

A. First of all, 12b does not answer the question because it says there is no waiver by adding another defense or objection. A counterclaim is not a defense or an objection.

But courts have tended to find no waiver here anyway. The reason I gave is not the use it or lose it theory. After all, D could put in his defense of service alone, wait for the defense to be determined, and if it was decided against him, amend his answer to add the compulsory counterclaim. The counterclaim would not be lost. The argument I gave is that there is no good reason to force D to go through such a process. Why not allow him to put the defense and the counterclaim in the answer from the beginning?

But there may be something to your use it or lose it theory, since if D doesn't put the counterclaim in the answer and P's action is dismissed on service grounds, D stands a chance of being precluded if he tries to sue on the counterclaim later. He would be more protected if he put the counterclaim in his answer from the beginning and then when the P's action is dismissed on service grounds, he asked that the court allow him to voluntarily dismiss the counterclaim without prejudice.

Q. 15 Questions about impeachment evidence.

Some quick questions while cleaning up on scope of discovery:

In general the policy is that the surprise of catching a lying witness

with impeachment evidence in front of the jury is a good thing, but

indications are still that the evidence is discoverable with some

qualifications (that mitigate the impact of its discoverability on the

lie-catching?).

CORRECT

Is evidence that you have impeaching your own witness discoverable by

the other side (if it is not work-product)?

YES - CLEARLY. IT MAY ALSO BE DISCOVERABLE EVEN IF IT IS WORK PRODUCT, SINCE THE USEFULNESS FOR IMPEACHMENT MIGHT BE USED TO OVERCOME THE QUALIFIED WORK PRODUCT PRIVILEGE.

What qualities of the

evidence are looked toward in finding out if it is discoverable, or is

it discoverable in general for its relevance alone?

ITS USEFULNESS FOR IMPEACHMENT MAKES IT RELEVANT, BUT OF COURSE IT MUST REALLY IMPEACH THE WITNESS (THAT IS, SUGGEST THAT HE IS A LIAR) NOT SIMPLY MAKE THE WITNESS LOOK LIKE A BAD PERSON. THERE ARE MANY FIGHTS ABOUT WHETHER MATERIAL IS GENUINELY IMPEACHING RATHER THAN SIMPLY PREJUDICIAL.

Is evidence that you have impeaching the opposing side's witness

discoverable by the opposing side? What has to be shown about the

evidence to make it discoverable, or is it discoverable in general on

relevance alone?

THERE HAS BEEN A MOVEMENT TO MAKE IT DISCOVERABLE, BUT WITH A POSSIBILITY OF DEPOSING THE OTHER SIDE'S WITNESS BEFORE TURNING IT OVER. IF THE MATERIAL IS WORK PRODUCT, HOWEVER, THE PRIVILEGE WILL HAVE TO BE OVERCOME, IF IT CAN BE.

Does the policy of allowing depositions of witnesses before the

evidence is turned over the compromise to allowing this discovery, in

that it allows the impeachment evidence to be scrutinized yet allows

the party to expose them in their lie?

RIGHT.

Sorry that these turned more into statements then questions. A mere

confirmation that I'm on the right track might suffice. Thanks!

Q. 16 Questions about relation back and new parties.

I have a question about relation back and the addition of new parties. It seems that the only provision that speaks to this is 15(c) about the changing or renaming of parties. So from what this says, is it true that the naming of additional parties does not relate back? For instance in the case of a co-defendant: Say you had a contract issue and there were two defendants that signed it and you only sued one. Then the statute of limitations runs out. If you amend to add the second signer, the case against the co-defendant would be dismissed for statute of limitation because the issue did not relate back?
Also, does that work the other way for plaintiffs? Say the defendant beat up two people at a bar. You did not know who the other plaintiff was so you filed alone. The statute of limitations on battery runs out. Then the other person who was beat up suddenly approaches you and wants to join as co-plaintiff. This claim would be dismissed for statute of limitations concerns because they do not relate back?

A. You are right that relation back for change of parties is governed by 15(c) (or, more specifically, 15(c)(1)(C)). You are also right that the adding of additional defendants would not allow for relation back. The only situation in which the defendants are changed and relation back is allowed is when the name of an original defendant in the complaint is corrected (and the other requirements of 15(c)(1)(C) are met, of course). Adding an entirely new defendant won't work. And it shouldn't work, since that new defendant would not have notice within the statute of limitations period.

Now the question about adding a new plaintiff is a very nice one indeed. Here is what Wright & Miller, 6A Federal Practice and Procedure section 1501 have to say on the matter:

Although Rule 15(c) does not expressly apply to a new pleading adding or dropping plaintiffs, the Advisory Committee Note to the 1966 amendment of the rule indicates that the problem of relation back generally is easier to resolve in this context than when it is presented by a change in defendants and that the approach adopted in Rule 15(c) toward amendments affecting defendants extends by analogy to amendments changing plaintiffs. As long as defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. This seems particularly sound inasmuch as the courts will require the scope of the amended pleading to stay within the ambit of the conduct, transaction, or occurrence set forth in the original pleading.

Once again, a very nice question.

Q. 17 Question about counterclaims and removal

If defendant's compulsory counterclaims against plaintiff exceed the jurisdictional minimum for diversity suits, can D use this as basis for removal? I realize that D cannot aggregate his counterclaim with P's claim to rise above the jurisdictional minimum, but is D unable to bring his causes of action against P in federal court simply because P was able to file his claim first?

A. Most (although not all) federal courts have held that the defendant's counterclaims, including compulsory counterclaims, are irrelevant in determining removability. The question is answered solely by reference to the plaintiff's complaint. This is true even when the compulsory counterclaim on its own is above the jurisdictional minimum. See e.g. Shaw v. Dow Brands, 994 F.2d 364, 366 (7th Cir.1993); Martin Pet Prod. v. Lawrence, 814 F.Supp. 56, 58 (D.Kan.1993) Video Connection of Am. v. Priority Concepts, Inc., 625 F.Supp. 1549, 1551 (S.D.N.Y.1986). But see, Fenton v. Freedman, 748 F.2d 1358 (9th Cir.1984).

Q. 18 Question about the jurisdictional minimum in diversity and injunctions

I have in my notes that if a diversity case claim involves only

injunctive relief, that removal to federal court can be based on

potential losses of the defendant were he to have to shut down his

taxidermy business as a result of the injunction. Is this true? If

so, I have a second question about this question presented in class:

7) P1 and P2 are suing D. (P1 and P2 each have property adjoining

D's.) P1 and P2 ask the court to enjoin D from polluting their

property by shutting down his rendering plant. Assume that the cost

to D in lost revenue if he shuts down the plant is $140,000. The

value of the injunction to P1 and P2 is $70,000 each. Is the amount

in controversy satisfied for diversity?

I understand how this could fall under the Shields v. Thomas

exception, but couldn't this also be removed by the defendant because

his losses, if the injunction is given, would be above 75K?

A. There are a couple things going on here. First of all, there is some disagreement in the federal courts about how to measure the value of injunctions for jurisdictional minimum purposes when the value to the plaintiff is different from the cost to the defendant. Some courts say value to the P, some say either can be used, other say the cost to the D applies when the D is removing and the value to the P applies when the P is suing originally in federal court. For citations, see Olden v. Lafarge Corp., 383 F.3d 495, 503 n. 1 (6th Cir.2004).

But there is another element to your question. In question 7, one might say that there is a common and undivided right asserted by P1 and P2 because injunctive relief must be given to both of them if it is given to one of them. For this reason, under Shields, aggregation is possible. I think your question is whether we might get the same result, without appealing to the common and undivided right principle of Shields, if one simply looked to the defendant perspective in valuing injunctions.

I think the answer is no. But to see this we need a case in which Shields does not apply. Imagine P1 and P2 are suing D because of flooding from D's property. Each is asking for injunctive relief, but P1 is asking that D dam one part of a stream and P2 is asking that D dam another. Injunctive relief flowing to P1 is possible without it flowing to P2 and visa versa. So Shields does not apply. Now assume that the cost to D of satisfying P1's injunction is 70K and the cost of satisfying P2's injunction is also 70K. There would be no aggregation, even if the court took the defendant perspective when determining the value of injunctions.

Q. 19 Question about Erie in Supplemental Jurisdiction Cases

What if federal procedure applies to a federal question action, Erie analysis says that state procedure applies to a state law action brought in on supplemental jurisdiction, and the state and the federal procedure simply are incompatible in the same case?

A. The answer appears to be that federal procedure applies. Something similar happens with respect to privilege law. Under Fed. R. Evid. 501, state law privileges apply to state law causes of action in federal court. But what if the state privilege law says the material is excluded, federal privilege law says it is included, and both state and federal actions are being entertained by the same jury? The jury can't really consider the evidence with respect the federal action but ignore it with respect to the state law action. Federal courts have concluded that in this case federal privilege law applies. E.g. Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir.1992). I believe that the same thing would apply in your example. But keep in mind that it is not always impossible that federal procedure be applied to the federal cause of action and state procedure applied to the state law cause of action.

2006 CivPro Q&A

1) Declaratory judgments.
Q. Prof. Green - I am reviewing the initial "Overview of a Civil Suit" and I have a question about the section on possible relief. One of the equitable relief options was declaratory, a "binding statement of the court about legal status of parties." What would this be good for, and why would someone want it?

A. Let's say that I don't want to abide by a contract with you, because I think that it is invalid. If you sue me to get a declaratory judgment saying that the contract is valid, you are pretty much assuring that I'm going to abide by my contractual obligations. After all, if I breach, you can sue me and I will not be able to litigate the invalidity of the contract, since I will be bound by the declaratory judgment.

2) Criteria for the Supreme Court granting cert.
Q. [Y]ou said in class today that the Supreme Court's denial of cert for various cases was not as important as many people make it out to be. Could you enumerate on this as well? I was always under the impression that the Court's refusal to grant cert amounted to their upholding of the previous ruling (which it techinically does), but more importantly, that such an action indicated that the Court's ideological or lawful predisposition to abide by the lower Court. The cert denial of an abortion case, for example, would indicate that the Court either accepted the previous Court's ruling on abortion or was not yet ready to tackle the often sticky issues included in the case (which would come to bear even if they heard the case and affirmed the previous ruling). To me, this seems legally important.

A. THE SUPREME COURT MAY INDEED DENY CERT BECAUSE IT THINKS THE DECISION OF THE COURT OF APPEALS IS RIGHT. BUT IT CAN DENY CERT EVEN WHEN IT THINKS THE DECISION IS WRONG. IT DOES THAT NOT REALLY BECAUSE IT DOES NOT WANT TO TACKLE STICKY ISSUES. THE REASON IS THAT THE SUPREME COURT WANTS A REASONABLE CASE LOAD AND THEREFORE ONLY CHOOSES CASES WHEN IT FEELS THAT THE MATTER IS NOT GOING TO BE RESOLVED BY THE LOWER COURTS. TRUE, THERE IS ONE COURT OF APPEALS DECISION THAT IT DOES NOT LIKE. BUT MANY OTHER CIRCUITS MAY REACH THE OPPOSITE CONCLUSION, MOTIVATING THE FIRST COURT OF APPEALS TO CHANGE ITS TUNE.

YOU ARE RIGHT THOUGH THAT A DENIAL OF CERT DOES UPHOLD THE LOWER COURT'S RULING. AFTER ALL, THE RULING REMAINS STANDING.

3) Does Rule 11 evidence have to be in a complaint?

Q. I have a quick question regardling Rule 11, and the F&K readings on pages 41-45. Per Rule 11, the attorney must perform a reasonable inquiry to confirm that the complaint has a reasonable basis in fact and law. Does the proof of this (ie, the evidence present to prove the facts and law) need to be included in the complaint? Or does the attorney just need to be confident that there IS evidence to support the alleged facts and law? It seems that if the evidence needed to be included in the complaint, this would be contrary to Rule 8's requirements of "short and plain" statements.

A. There is no requirement that the evidence be included in the complaint -- that would be in tension with R 8(a). R 11 requires only that one have the evidence. If the other side makes a motion for R 11 sanctions, then one will have to start mentioning it.

...

7. Question about collateral attacks.

Q.
Lawsuit 1: You do not receive notice and default.
Lawsuit 2: Plaintiff brings suit on the judgment and defendant brings collateral attack and is successful.
What happens next? Does Lawsuit 1 pick back up and proceed normally? Does Lawsuit 2 proceed from there? Is the lawsuit over, and the plaintiff has to bring another complaint (Lawsuit 3)?

A. The answer is 3. Lawsuit 2 is over - judgment for the defendant. Lawsuit 1 is over too and it has been determined (in lawsuit 2) that its judgment for the plaintiff was invalid. So the plaintiff needs to bring lawsuit 3.

8. Question about Rule 4.

Q. We discussed the two general ways that Federal Rule 4(e)(2) could be read: one, allowing state rules to also substitute for 4(c)(2) [Glannon’s interpretation]; or two, restricting state rules to only be substitutes for the method in which service is effected [4(e)]. Assuming that Glannon’s reading is correct, there does not seem, to me, to be any principle for assuming that 4(e)(2) can then be restricted to just serving as substitute for 4(c)(2) only.

In other words, suppose a state granted that proper service only required the defendant to receive the summons, and not a copy of the complaint. Under Glannon’s reading, it would seem that 4(e)(2) would also then allow the state rule to substitute for 4(c)(1)? Is there some other case or statutory law that suggests otherwise? It would seem that Glannon’s interpretation would allow a state’s service procedures to completely consume Rule 4.

A. First, just a clarification. The issue concerns two ways of reading 4(e)(1), not 4(e)(2), for it is 4(e)(1) that says that service is OK if it is "pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State." The question is whether those 4(e)(1) state standards, when relied upon, also apply to who may serve and so would trump the standard in 4(c)(2).

That said, your question is a good one -- Why draw the line at who may serve? Why not expand it to what should be served? I guess the argument against such an expansion would be that 4(e)(1) says that "service upon an individual ... may be effected in any judicial district of the United States" pursuant to state law, and it is plausible to understand the law governing what is served not as law about how service may be effected. But that's just a guess.

9. Question about R. 5

Q. I understood what you said in class about Rule 4 applying to service on third parties, but Glannon seems to contradict you starting at the bottom of 307 and continuing on the top of 308. It states that "virtually all such papers may be served under the more flexible provisions of Fed. R. Civ. P. 5...." What does this mean with respect to what you said in class?

A. All I can say is that Glannon takes it back on pp. 315-16, where he says that 3rd part complaints must abide by the standards of R 4. I guess that is why he said "virtually." But the truth is that R 4 standards do not merely apply to 3rd party complaints, but also to all pleadings served on someone who has not yet had any notice of the suit, such as new parties joined to counterclaims.

10. Question about the Mottley case.

A. I had a hypothetical question about the Mottley case discussed in class today. You mentioned there were two arguments, one of which was dealing with the taking of property. You said that if the Supreme Court hadn't said the statute didn't apply after the case went through state courts, then there could be a claim in federal court as to getting compensation from Congress. The court didn't seem to deal with this issue. If this case were brought today, would they have subject matter jurisdiction since you can state the claim in the alternative under the current federal rules? Does stating the claim in the alternative apply to the subject matter jurisdiction?

Q. There is a lot going on in this very sophisticated question, some of which I will not be able to answer fully right now (or indeed ever). Here, in essence, is your question. Why didn't the Mottleys do the following: Sue two defendants-- the Railroad and the United States (or officers of the United States) -- together in the same suit in federal court? The action against the Railroad would be a contract action under state law. But the action against the United States would be under federal law because it would claim that the statute prohibiting free passes was a taking requiring compensation under the 5th Amendment. The Mottleys could argue in the alternative -- either the Railroad should give us the free passes (under state contract law) or the United States should compensate us (under the Constitution). And as you note, such alternative arguments are now possible.

Here are some problems. Is the action against the United States ripe enough to litigate? Is it really, at this point, a case or controversy at all? (We will never discuss this issue in this class.) But let us assume that the action against the United States is a case or controversy. There is little question that there would be federal subject matter jurisdiction for that action. But what is the source of federal subject matter jurisdiction for the joined action against the railroad? This gets into complicated issues of supplemental jurisdiction, which we will deal with later. As you will see later, there would be supplemental jurisdiction. So the bottom line is that you have come up with a very sophisticated way to get both actions into federal court after all. Brava!

...

12. Where's my domicile?

Q. The discussion on domicile makes me question where exactly I am domiciled. There are 4 different states I could be domiciled in--
1) I just switched my driver's license from NC to VA and I intend to live here for 3 yrs of law school-- but not sure where I'll live after that.
2) I went to college in NC and worked for 6 months there and paid NC income taxes. I briefly had a NC drivers license.
3) I am registered to vote in Georgia, where my mother and brother live. I went to high school there, and one year of college, but I do not ever intend to live in GA again.
4) On forms I claim my "permanent home address" with my father, who lives in Las Vegas, NV. I've spent the last 2 summers and all holidays there for the last 2 years. My car is registered in NV and I have NV plates.
Where is my domicile?
If this is too tricky, it's okay. I just thought it was an interesting situation.

A. The domicile of (emancipated) students is always a problem, but your case sounds particularly difficult. Curiously, you cannot have no domicile, so if you were to sue or be sued by a Virginian, North Carolinian, Georgian or Nevadan in federal court (under state law) the issue of your domicile would have to be decided. It certainly is true that you were domiciled in Georgia at one time and you would keep that domicile until you established a new one. My gut tells me that you did establish a Virginia domicile, but my gut is no better than yours on this matter.

13. Many questions about diversity and alienage jurisdiction.

Q. We discussed in class that 1332 limits the scope of cases federal courts can take to only those with complete diversity. Am I right in remembering this by saying if a FL resident is on one side of a suit, then no FL resident can be on the other side of the suit (for their to be diversity jurisdiction)? Is it also ok to phrase it in my mind as "citizens from the same states can NEVER be on opposite sides " for their to be diversity jurisdiction? I want to make sure it's ok to think in absolutes like this.

A. This is accurate.

Q. For federal question jurisdiction, we said if it was solely a state issue and the only federal matter involved was a defense, then the case would have to go through state courts all the way to the Supreme Court for it to get into the federal court system, and that we didn't mind the SC having appellate jurisdiction because it was fair and logical for them to take cases regarding federal issues. Was I right in understanding our conversation today to say that completely state issues with partial diversity (a FL resident suing both GA and FL residents) could only go up the same way through state courts to the Supreme Court, BUT that in this case, the Supreme Court would probably not grant cert, because there's no good reason for the federal court system to try cases simply because there was partial diversity?

Correct. The only changes that I would make in what you said is 1) it is "minimal" not "partial" diversity; 2) it is 100% certain (not merely improbable) that the Supreme Court would not grant cert to the appeal of a minimal diversity case from a state court system without any federal issue (basically the reason is because Congress has not passed a statute allowing the SCt to take such cases) and 3) the reason Congress has not passed such a statute is that there is no reason for the Supreme Court to opine about state law issues. It's not right to say it's because there is no good reason for a federal court to TRY a case simply because there is partial diversity. In fact, in a few cases Congress has allowed federal district courts to try cases with minimal diversity. But the SCt would not be trying such cases -- it would be taking legal issues on appeal. And there is no reason for it to take an appeal when the only issues are about state law.

Q. We said that for 1332(a)(1), the definition of citizen is based on Baker v Keck, and that this was different from the definition of 1332(a)(2). What definition of citizen do we use for a2?

A. In 1332(a)(1) "citizen" almost always means a US national who is domiciled in a particular US state (domicile to be determined according to the Baker v Keck criteria).

That would be it except things are made a bit more complicated by the provision in 1332(a) that says "an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled." As I say in my posting on alienage jurisdiction (question 5) at http://msgre2.people.wm.edu/Alienagescenarios.html , that provision is there to make sure that when a U.S. national who is domiciled in a state sues an alien who is domiciled in that same state (and the suit is for violation of state law), the case will be denied federal jurisdiction. The provision is not there to turn a controversy between an alien domiciled in US state A and an alien domiciled in US state B into a diversity case under 1332(a)(1). Indeed it's probably unconstitutional for a federal court to take such a case.

How about 1332(a)(2)? Actually "citizen" occurs twice in there. 1332(a)(2) gives jurisdiction to controversies between "citizens of a State and citizens or subjects of a foreign state." The first "citizen" again means a U.S. national with a domicile in a U.S. State. You might wonder again about the language saying that "an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled." But that provision is not there to turn a controversy between an alien domiciled in a state in the U.S. and an alien domiciled abroad into an alienage case under 1332(a)(2). (Once again, that would probably be unconstitutional.)

What about the second occurrence of "citizen" (in "citizens or subjects of a foreign state"). There it means a foreign national. It does not mean someone domiciled abroad, because a controversy between a US national who is a citizen of a U.S. state and a U.S. national who is domiciled abroad does not fall under 1332(a)(2). See scenario 6 in http://msgre2.people.wm.edu/Alienagescenarios.html

Q. I'm trying to practice and understand which scenarios are ok or not and why. Can you look over these and make sure they're right? (I just listed the state abbreviations, but for all of them, I mean citizens of that state)

FL sues CA = ok (citizens of different states)

A. Yes

Q. CA sues FL = ok (citizens of different states)

A. Yes

Q. FL sues CA,FL = not ok (construed narrowly by 1332)

A. Yes

Q. FL,CA sue FL = Not ok (construed narrowly by 1332)

A. Yes

Q. FL sues German citizen = ok (citizens of a state and citizens of a foreign state)

A. Yes -- provided the German does not have a green card and is domiciled in Florida.

Q. German sues FL = ok (citizens of a state and citizens of a foreign state)

A. Yes provided the German does not have a green card and is domiciled in Florida.

Q. FL sues German, French = ok (citizens of a state and citizens of a foreign state)

A. Yes - provided neither the German nor Frenchman has a green card and is domiciled in Florida

Q. FL,CA sues German, French = ok (citizens of a state and citizens of a foreign state)

A. Yes - provided neither the German nor Frenchman has a green card and is domiciled in Florida or California.

Q. FL sues CA, French = ok (citizens of different states w/ citizens of foreign states added)

A. Yes - provided the Frenchman does not have a green card and is domiciled in Florida.

Q. FL, French sue CA = ok (citizens of different states w/ citizens of foreign states added)

A. Yes - provided the Frenchman does not have a green card and is domiciled in California.

Q. FL sues French, FL = not ok (construed narrowly by 1332)

A. Yes.

Q. FL, French sue FL = not ok (construed narrowly by 1332)

A. Yes.

Q. FL, French sue German = not ok (not between different states w/ added foreign citizens BUT WHY ISN'T IT OK B/C CITIZENS OF A STATE VS CITIZENS OF A FOREIGN STATE????)

A. Right, that it is not OK I discuss why not in my posting at http://msgre2.people.wm.edu/Alienagescenarios.html (question 7)

Q. German sues FL, French = not ok (same reasons as above but I still donn't understand why???)

A. Right, that it is not OK Same as above.

Q. Country of Germany sues FL = ok (foreign state as plaintiff and citizens of US)

A. Yes.

Q. FL sues Germany = not ok (specifies foreign state must be a plaintiff, not a defendant)

A. Yes.

...

15. Question about "fictitious names" and 28 USC 1441.

Q. Someone in the review session asked about the following sentence in 1441: "For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded."

A. I tentatively suggested (after some hemming and hawing) that it was about John Doe defendants. That is indeed what it is about. When John Doe defendants are added, it is hard to determine whether an action is a diversity case. A plaintiff who wants to frustrate removal might therefore plead John Doe defendants. This would be a problem not merely because one can't determine their citizenship but also because they can't consent to removal. To stop this, Congress amended the removal statute in 1988 to include this sentence. Thus, the citizenship of any John Doe defendant may be ignored on removal. It is worth noting however that for plaintiffs suing originally in federal court John Doe defendants are disfavored and a number of federal courts have required that plaintiffs plead and prove that the John Does' citizenships are diverse to that of plaintiff. And some have taken the approach that the inclusion of John Does in a diversity action is a ground for dismissing the complaint for lack of subject matter jurisdiction.

16. Why can't a plaintiff/counterclaim defendant remove when served with a federal question counterclaim?

Q. You gave a pragmatic reason for why a defendant making a counter-claim that had federal jurisdiction could not remove on the basis of that claim. I was wondering if there were any parallel justification for why the plaintiff who has become the counter-claim defendant on a federal jurisdicion claim cannot remove. You have been clear about the arbitrary and nonsensical nature of some of these rules, but since you mentioned that people try to get different rules changed all the time, I wondered what the justification was for keeping that particular rule/application of the rule, which seems

counterintuitive and unfair.

A. The question is about the following scenario: A plaintiff sues a non-diverse defendant on a state law cause of action in state court. The defendant brings a federal question counterclaim against the plaintiff that is related to the plaintiff's action against the defendant. The worry with allowing the defendant to remove is that he could make up a federal counterclaim solely for the purpose of removal. This is probably the reason that defendants have not been allowed to remove in such situations. I think there is not the same pragmatic reason for keeping the plaintiff/counterclaim defendant from removing, for he can't tell the defendant what counterclaims to bring. I honestly think that this is a case where the plaintiff/counterclaim defendant should be allowed to remove, but 1441 speaks of "defendants" removing so it has not been allowed.

17. Question about McGee factors

Q. When you were talking about how the McGee case is a total departure from the Int'l Shoe theory, I was wondering if an argument could be made that we could attach the McGee notions of convenience, etc., to Int'l Shoe's language of "fair play and substantial justice. It's a bit of a strecth, but we've seen the courts do lots of strecthing, and as you've said, Pennoyer came out of thin air! So it seems plausible to me to tie the two together, but I may be wrong...please let me know your thoughts when you get a moment.

A. I very much agree. We can understand McGee as an interpretation of what "fair play and substantial justice" means. In that sense the Court is not diverging from Int'l Shoe. But it appears to be a different interpretation of that phrase from the one offered in Int'l Shoe.

...

19. Question about Harris v. Balk.

You discussed the case of Harris v. Balk, which held under a Pennoyer framwork that debt followed the debtor. I am curious about the logistics of this type of suit, would the debtor be considered the defendant in the action, or would the debtor be considerd a third party? Today, would there be personal jurisdiction in the following example?

A credit card company is incorporated in Delaware, and issues credit cards to customers on the east coast. One of their customers travels from Virginia to California, and continues to use the credit card there. Then, Company X commences a quasi in rem action against the credit card company in California state court, attaching the debt of the customer as property of the credit card company. The credit card company appears specially to challenge personal jurisdiction.

I would think that there would be no personal jurisdiction, as this would not constitute sufficient "minimum contacts" of the defendant credit card company with the state of California.

World-Wide Volkswagen also stated that there was no personal jurisdiction over the defendant where "unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State." (On page 565) However here, instead of talking about unilateral action of the plaintiff, we are talking about unilateral action by the debtor.

A.

I agree that Harris v Balk-style quasi in rem actions would be rejected now as not satisfying Int'l Shoe. Shaffer has at least settled that much.

As for how the actions proceeded in the past, the defendant in the quasi in rem action was the creditor and there had to be notice to him (although it could be by publication) for there to be a binding judgment against him. But in the course of the proceedings against the defendant/creditor there also had to be an action against the debtor, to determine that there was indeed a debt to attach. This action could be brought by the plaintiff if the defendant/creditor did not appear and the plaintiff would stand in the shoes of the defendant/creditor in this suit.

20. Question about quasi-in-rem.

Q.

Suppose a plaintiff (Arizona) brings a suit against a paper company incorporated in Washington with all its business in Washington. The plaintiff wants to sue the paper company in AZ state courts regarding discriminatory hiring practices, let's say in Washington. The only connection the paper company has with AZ is a 500 acre parcel of land in the state with no employees or factories on it. The plaintiff claims there is quasi-in remi PJ, is this the case.

We thought that it failed the graph test that you composed the other day in class, but it did have to do with real estate as Justice Stevens had discussed as a possible exception to the Shaffer case. Also, since there is undoubtedly some level of control the sovereign has over the property it would seem there would be PJ. I think essentially we were not certain on how to draw the distinction between a corporation and an individual. Clearly there's PJ under a Pennoyer framework as it would pertain to an individual, but it doesn't seem that there would be if this is looked at from an International Shoe, activity level- framework.

A.
If the argument is that there is PJ because it is a quasi-in-rem action, then there is really no difference if the defendant is an individual or a corporation. The only question is how viable quasi-in-rem actions are after Shaffer. On the one hand we might say that they are not OK. According to Int'l Shoe, there has to be substantial continuous contacts with the forum for PJ for causes of action unrelated to those contacts. If the property amounts to substantial continuous contacts with the forum, then there will be PJ, but it won't be quasi-in-rem because the judgment will be able to be in excess of the value of the property, since there is no such requirement for general jurisdiction as Int'l Shoe understands it. If it doesn't amount to substantial continuous contacts with the forum, then there won't be PJ period.

On the other hand, we might say that the real issue is whether the defendant can reasonably anticipate PJ as a result of his contacts with the forum state. If so, then one might say quasi-in-rem with respect to real property can be reasonably anticipated (although it can't with respect to stock, as in Shaffer), provided that the judgment is limited to the value of the property.

21. Question about waiver of service.

Q.
Hi Professor Green, just have a quick question. Why is it beneficial to have a rule that allows a waiver of notice if P has to contact D anyway?

A.
It's not waiver of notice, since, as you note, there still is notice. It is waiver of service of process. The reason the waiver rule exists is because the notice that P has to provide D through the waiver method is cheaper and easier than the providing service of porcess. The waiver method allows for notice through the mail, whereas service requires a process server.

22. Question about the fallback provision in the venue statute.

Q.
What good is 28 USC 1391(a)(3) and (b)(3)? Won't cases that satisfy this fallback venue provision still be knocked out on personal jurisdiction grounds?

A.
First some background. 1391(a)(3) applies to actions "wherein jurisdiction is founded only on diversity of citizenship" and allows for venue in "a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." 1391(b)(3) applies to actions "wherein jurisdiction is not founded solely on diversity of citizenship" and allows for venue in "a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." But (b)(3)'s reference to "found" is usually taken to mean "subject to personal jurisdiction," so the provisions are usually understood as equvalent.

Let's start with an example of where there is only one defendant (even though that was not the example you were worrying about). For the fallback provisions to apply there can be no venue in any district through the normal two methods (under (a)(1)-(2) or (b)(1)-(2)). That means no substantial part of the events or omissions giving rise to the claim can occur in any district (so it must all be abroad). In addition, the defendant cannot reside within any district (as so must reside abroad). If the defendant resided in a district, then all the defendants would reside in the same state (since there is only one defendant) and so there would be venue in that district. It is worth noting that for venue purposes an alien may be used in any district. So there would be venue in any district for a suit against a sole alien defendant even without the fallback provision. But we can assume that our example is a suit against an American residing abroad.

Now let us assume that this defendant is tagged in a state and the action is brought in the federal district court where the tagging occured. There would be PJ in that state, but without the fallback venue provision, there would be no venue in the district. The fallback provision would allow for venue though, since the defendant is subject to PJ in the district. So this is one example where the fallback provision is useful.

Let us now consider a case where there are two defendants - D1 and D2. Once again, for the fallback provisions to apply there can be no venue in any district through the normal two methods (under (a)(1)-(2) or (b)(1)-(2)). That means no substantial part of the events or omissions giving rise to the claim can occur in any district (so it must all be abroad). In addition, the two defendants cannot reside in the same state. Let's assume that D1 resides in California and D2 resides in Minnesota.

This is the example that you were thinking of. Imagine that D1 is tagged in the S.D.N.Y. That would allow for venue for the actions against both D1 and D2 in the S.D.N.Y. on the basis of the fallback provision. But what good would that do, you thought, since there is no PJ over D2? Good question. But keep in mind that D2 might have been tagged in another district in NY (the E.D.N.Y., the N.D.N.Y. or the W.D.N.Y.). That would be sufficient for PJ over both D1 and D2, but there would be no venue without the fallback provision. As I have said, no substantial part of the events or omissions giving rise to the claim occurred in any district. Furthermore the defendants do not reside in the same state (D1 resides in California and D2 resides in Minnesota). So the fallback provision is useful here.

23. Question about unrelated actions joined to crossclaims.

Q.

I have a question concerning cross-claims.

A sues B and C. B wants to file a cross-claim against C unrelated to the original occurrence, but B must first file a claim related to the original occurence. Suppose B makes a proper Cross-claim and C answers. B then goes ahead and makes other claims against C (which he is permitted to do under 13B now that he is a "plaintiff"). If 6 months later C figures out that B's original cross-claim fails to state a claim, and the original claim gets dismissed, what happens to the other cross-claims. Are they automatically dismissed? While you wouldn't want a cross-claimer to be able to tack on claims by a faulty original claim, would the court also not want to throw out 6 months of time spent on these claims?

A.
Good question. Let's set the question up. Say P, D1 and D2 were in a brawl. P sues D1 and D2 for his physical damages. D1 brings a crossclaim against D2 for his emotional damages from D2's punches coming very close to him. This joinder is allowed under Fed. R. Civ. P. 13(g), because D1's cause of action against D2 concerns the same transaction or occurrence as P's claim against D1 and D2 (namely the brawl). D1 joins to this crossclaim an unrelated claim against D2. Let's say it is for breach of contract. He is allowed to do this, not under 13(b) (as you say) but under 18(a). The permissive counterclaim rule (13(b)) is irrelevant because D1 is not bringing an action against someone bringing an action against him. Rather, D1 is joining an action against someone to an action that he is already bringing against that person. This is allowed under Rule 18(a) even if they are unrelated.

Let's say that D2's answer to the crossclaim includes the defense of failure to state a claim, because under the applicable law purely emotional damages are not recognized. D1's crossclaim is dismissed for failure to state a claim. What happens to D1's contract claim you ask? Answer - it remains. There is no problem, as far as the joinder rules are concerned, with that action continuing, even though that action would not have been able to be joined against D2 if there had not already been an action against D2 under 13(g) that concerned the same T/O as P's suit against D1 and D2.

Of course, there must be personal jurisdiction, venue and subject matter jurisdiction for D1's contract claim. I haven't said a word about that!

24. Question about counterclaims to actions dismissed for failure to state a claim.

Q.

Our discussion of counterclaims raised a question in my mind. You discussed the potential of a plaintiff creating a bogus claim so that the defendant would have to bring his cause of action as a counterclaim. I understand that the defendant could avoid this by making a pre-answer motion of failure to state a claim. However, he could also make a motion for failure to state a claim at any time during the suit. My question is this: what would happen if the case was not dismissed before trial and instead the defendant brought the counterclaim, then moved for dismissal under failure to state a claim during the trial? If the the original claim was dismissed, could the counterclaim stand alone at trial, or would it be dismissed and the defendant would have to bring it in a new suit?

Please respond at your convenience.

A.
The counterclaim could definitely stand alone at trial (assuming there is subject matter jurisdiction, personal jurisdiction and venue for it, which we will talk about later).

Another question, however, is this. Assume that the plaintiff's action is dismissed for failure to state a claim as a result of that defense being introduced in the defendant's answer. What if the defendant does not want to continue with his counterclaim? Will he be obligated to litigate it in the plaintiff's forum, on the ground that it is a compulsory counterclaim to the plaintiff's (now dismissed) claim?

The answer appears to be no. He may voluntarily dismiss his action. This is what Wright & Miller section 1417 say:

"When defendant files a pleading, he automatically becomes subject to Rule 13(a), and since the complaint technically does assert a "claim," even if not a claim on which relief ultimately can be granted, he should interpose his counterclaim. Thus, the cautious practitioner will assert any compulsory counterclaim he may have in the answer. If defendant's Rule 12(b)(6) defense is successful and he does not wish to pursue the counterclaim at that particular time or in the forum chosen by the original plaintiff, he then may seek a voluntary dismissal under Rule 41." (my emphasis)

A voluntary dismissal would mean that it is without prejudice and can be brought again. It bothers me, however, that there is no argument in Wright & Miller about why 13(a) would not bar the counterclaim if it was brought again. They also cite no case for this. Still, it makes sense that the defendant should not be obligated to litigate the compulsory counterclaim in the plaintiff's forum now that the plaintiff's action is gone.

25. Questions about counterclaims to a quasi-in-rem action.

Q.

If P sues D in a quasi in rem action in New York and D counter-claims, does D subject herself to in personam jurisdiction at that point even if her appearance(s) thus far was a "limited appearance?" It seems D has agreed to subject herself to the discretion of the court. If so, does it matter if the counter-claim is for more or less than the property value?

What of the following?

P -> D for $20k (property value worth $25k)

D -> P for $1k, $5k, $20k, $25k, $30k

In first case counter claim and original claim in aggregate are less than the value of the property.

In next, they add up to the value of the property

In next, they are both individually under the value of the property

In 4th case, the counter-claim being at the value of the property

In 5th case, the counter-claim being worth more than the value of the propery.

To me, even the simplest counter-claim seems to destroy the "limited" nature of the appearance. But if not, is there a point where it is destroyed?

Under 13(a) the defendant is not obligated to bring a counterclaim (even a "compulsory" one) in a quasi in rem action. (My understanding is that this is true in state courts that allow limited appearances as well.) But what happens if he does bring a counterclaim?

If he does, the compulsory counterclaim rule now attaches - the defendant is now obligated to bring all causes of action that he has concerning the T/O that the plaintiff is suing him about.

Furthermore, for all of the compulsory counterclaims, the mere fact that the defendant brings a counterclaim is a waiver of the personal jurisdiction rights he previously had when making a limited appearance. The value of the property is now irrelevant. There is PJ for the counterclaims (by virtue of the defendant's appearance in that forum) no matter how big or small the compulsory counterclaim is. I believe that this answers your question.

But it may be that you were interested in the plaintiff. Is he now freed of the limitation on his judgment due to quasi in rem jurisdiction by virtue of the defendant bringing a counterclaim? Is the plaintiff's action now in personam? I could not find anything on this, but my gut tells me yes and furthermore that it does not matter how small the value of the defendant's counterclaim is. After all, it would be pretty weird if the defendant is forced to litigate everything about the T/O but the plaintiff can only litigate up to the value of the attached property.

27. Choice of venue clauses in contracts.

If you buy a product that comes with some kind of agreement (let's say one of those little warranties in the box) that has a clause that any legal action you take against them must take place in Alaska, is this enforceable in light of what we've learned, and you have NOTHING to do with Alaska and didn't get the product there? I've heard of these, and it sounds like it would allow a defendant to manipulate the system by forcing litigation in its own home state, where it may have favor- even though it shifts the inconvenience to the plaintiff.

A.
This is a great question but it is a very broad one, so I can only say a few things about it. It used to be that choice of venue clauses were not considered enforceable at all. But that started changing from the 1950s to the 1970s. The SCt concluded that such provisions were not per se unenforceable in Bremen v. Zapata Off-Shore Co, 407 US 1 (1972) (see also Carnival Cruise Lines Inc. v. Shute, 499 U.S. 585 (1991)), but it listed a number a circumstances (which I won’t go into in detail) where they would not be enforced. One example is where there is no connection between the forum chosen and the parties at all. I'm not sure from your question what the connection is between the producer and Alaska. If there is a conncetion, it is very likely that, under federal law, the provision would be enforceable, provided it was really accepted by the consumer when contracting. (It is worth noting that some states still accept the view that these provisions are per se invalid.)

But there is another problem in your question. It seems that the parties did not really bargain for the choice of venue provision. Instead the purchaser was simply presented with the provision after having bought the product. The movement for enforcing choice of venue provisions is predicated on the idea that parties’ bargain should be respected. But bargaining seems absent here, which makes enforcement less likely - although one could argue that if the consumer did not like the provision he could have returned the product.

28. Question about the enforcement of federal judgments in federal court.

Is there a procedural time limit for when P may bring ancillary action against D to enforce judgment? How soon after judgment is received is a case considered closed?

First of all, an action to enforce a judgment issued by a federal court is a state-law action, even when the judgment issued by the federal court concerned an action under federal law. Indeed Rule 69, which allows for supplementary proceedings to execute a federal judgment, specifies that the applicable law for enforcement shall be the law of the state where the federal court is located. (In truth, there is a bit of federal law on the topic, for example when the United States government has gotten the judgment in its favor, but you don’t need to concern yourself with that.)

What is more, there is no independent ground for federal subject matter jurisdiction for the suit on the federal judgment, unless the parties are diverse. For example, assume that a Nevada plaintiff won a judgment in federal court against a Nevada defendant for a suit brought under federal law. The plaintiff now sues to execute the judgment against that defendant in Nevada state court. The defendant may not remove that action to federal court, for there is no federal subject matter jurisdiction for the action. It is a state law action between non-diverse parties.

BUT there is ancillary jurisdiction for a state law action executing the federal judgment as long as it is understood as a continuation of the suit in federal court that rendered the judgment. How long can the successful plaintiff wait to bring these proceedings before that court? Very long. The only requirement is the limitations on such suits under the applicable state law, and that deadline often does not arise for years. So apparently you can go to a federal court years after it issued a judgment on your behalf and sue on the judgment. It will still be considered a “continuation” of the old federal suit, even though the action would surely have a different file number and a different judge assigned to it.

What is more, it turns out there is a method for the certification of a federal judgment in a federal court other than the one where it was issued and that new federal court too can enforce the judgment (see 28 USC section 1963). So, provided that there is certification, which can be done, once again, well after the issuance of the federal judgment, the suit to enforce the federal judgment can be brought in virtually any federal court. There is still ancillary jurisdiction, because it is still thought to be the continuation of the first federal suit. It is as if that first suit had now been transferred. (Of course there must be personal jurisdiction in that new federal court, for example, though the presence of the defendant’s assets in that state.)

But keep in mind that the fact remains that the suit to execute the federal judgment does not have federal subject matter jurisdiction on its own. It still cannot be successfully removed from state to federal court, for example. It is only allowed in federal court because it is considered the continuation of the prior federal proceedings.

...

31. Question about work-product privilege in Rackers-v.-Siegfried-like example.

Assume that an insurance claim adjuster for the defendant has taken a measurement of skid marks at the scene of the accident. The police have also taken measurements, which are shorter. The plaintiff believes that the police’s measurements are wrong. The defendant believes, or pretends to believe, that the police’s measurements are right. If the plaintiff asks the defendant for the length of the marks in an interrogatory, the defendant simply provides the police measurements. If the defendant asks for the adjuster’s measurements, the defendant asserts the work-product privilege.

We know that it is very likely that the plaintiff could overcome the work-product privilege because of the usefulness of the adjuster’s measurements for impeachment. That was the main point of the discussion in class. But why can’t the plaintiff simply depose the insurance adjuster and ask him the length of the skid marks? Isn’t that a simple way to get the information without having to overcome the work-product privilege at all? After all, facts are not privileged…right?

It’s best to begin by identifying how this scenario is different from the normal work-product situation. Usually the person creating work product is not a witness to the events being litigated. Instead, he simply interviews those witnesses. As we know, even though the work product is protected, the witnesses themselves can always be deposed by the other side and must state truthfully their view of the facts. This follows from the general notion that facts (or really a person’s views about the facts) are not protected simply because they have been expressed in work product.

But this is a situation where the creator of the work product is himself a witness. This creates a tension. On the one hand the measurement of the skid marks is a fact about the case observed by a witness (the adjuster). It should be discoverable. On the other hand it is also the content of work product and so should be subject to a qualified protection.

What to do? After looking into the matter it has become clear that the adjuster can be deposed as a witness. When deposed, he – like any other witness – must state what he believes the skid marks were. A more problematic situation is if he, under the influence of the defendant, came to the conclusion that his original measurement was wrong and adopted the police report as his view. If so, it might be the case that the original measurement could be gotten only by overcoming the work-product privilege (I’m not sure about this). But it is clear that if the adjuster believes his measurements, the plaintiff can get them simply by asking the adjuster in discovery.

The question was also brought up in class how we would treat the adjuster if we categorized him as a non-testifying expert. After all, their opinions can be found out only given an extraordinary showing. This device did not sound right to me and so I said that courts would refuse to categorize him as an expert. But that still leaves open the question of the witness-observations of a genuine expert. After all, it is conceivable that a genuine expert might observe a case as a witness first-hand. As it turns out, in such a case, the opinions of the expert are discoverable as a normal witness. This was news to me.

32. Question about "facts" not being protected by the work-product privilege.

Another tension was raised in class that really bothered me regarding interviews with lay-witness. My notes indicate that: (1) On one hand, the underlying facts of the work-product are discoverable. (2) On the other, the content of the work-product is not discoverable. If this is wrong, stop right here.

So let's say plaintiff-counsel P informally interviews lay-witness W. W says "The light was green." However, P does not pass judgment regarding the truth of W's statement -- that is, he does not believe or disbelieve the statement.

If defense-counsel D asks in an interrogatory "Did W tell you the light was green?" It appears that P can refuse to answer because he would divulge the content of the work-product. But let's say D asks in an interrogatory "Does W believe the light was green?" It's not clear to me how this problem should be decided. On one hand, this is an end-run around the work-product rule -- how could P know W believes the light is green unless W told P? On the other hand, W's saying that the light was green presupposes his belief that the light was green, making this an underlying fact. Moreover, this information could be easily discovered through deposition, albeit at a much high cost. So what result?

Your question leads me into a bit of philosophy.

You’re right that requiring P to answer what the witness believes about the light would be an end-run around work-product privilege. It is really no different than asking what the content of the work product is, which, as we have seen, is not allowed under Hickman.

What made this seem like a problem to you is your understanding of the word “fact.” As I noted in class, the idea that facts are not protected by the work-product privilege can be confusing. By “facts” what is really meant is the view about the facts of the person questioned. Why is this so? Well, the best anyone can do when asked something is state his best views about the facts are. For example, assume that the real fact of the matter (eg from God’s perspective) is that the light was red. A witness nevertheless believes that the light was green. The witness is not God and can’t say what the facts are. The best he can do is say what he believes the facts are (namely that the light was green). So he can be required to testify that the light was green, even though the content of his belief is expressed in work product.

Likewise if P is asked whether the light was red, he must answer as he believes. Simply because the content of his belief is expressed in work-product does not mean it is not discoverable. But he cannot be required to answer about what the witness believes, for it is not P’s view about the facts.

33. Question about assignment to create diversity.

Q.
I was working on my outline this morning and I have a question. In looking at the TA's outline, I noticed that she had "one can create diversity by not joining an un-needed party, moving before the claim is filed, or assigning your claim." However, right after that, she has the case of Kramer v. Caribbean Mills which I though established that you could not improperly join a party in order to get federal jurisdiction. Could you please reconcile these 2 things for me? I am a bit confused. Thanks.

A.
Some assignments will be insufficient to create diversity. An example is the assignment in the Kramer case. But the genuine assignment of one's interest in a lawsuit would be able to create diversity. If A(NY) sells his interest in his contract suit against B(NY) to C(NJ) for, say, $200K, with no funny business of the sort that occurred in Kramer (where most of C's recovery was to be returned to A as a "bonus"), then C will be able to sue B in diversity.

On the other hand, if this is done, it will no longer be A's lawsuit that is brought in diversity, so this isn't really a case of A turning his own lawsuit into a diversity case.

34. Question about direct estoppel.

Q.
What is difference b/n collateral and direct estoppel?

A.
In collateral estoppel the relitigation of an issue is precluded in a case involving a different claim from the one where the issue was originally decided. For example, P sues D for negligence in connection with an accident in which P, D and X participated. D wins because the jury determines that P was contributorily negligent (he was drunk). P now sues X in negligence. This is a different claim from the one in P’s suit against D. But X can get a judgment in his favor because P is precluded from relitigating his contributory negligence.

In direct estoppel, the claim is the same. For example, assume P sues D in federal court in New York. D makes a motion to dismiss for lack of SMJ, but the court determines that diversity exists. Nevertheless the action is dismissed, without prejudice, for failure to state a claim. P then sues D (using a redrafted complaint concerning the same event) in federal court in California. D once again makes a motion to dismiss for lack of SMJ. P can claim that D is bound by the earlier determination that diversity exists.

The following is another example of direct estoppel. P sues D for negligence in a state court system in which the law of claim preclusion does preclude P from first suing for property damages and then suing for personal injury. In the first suit for property damages it is determined that D was negligent. P then sues for personal injury. The claim is the same. But D is issue precluded from relitigating his negligence.

35. Question about claim preclusion in toxic tort cases.

Q.
P sues D for mild asbestosis caused by asbestos exposure. P receives damages. Years later, he develops deadly mesothelioma, a cancer caused by asbestos. P sues D for this harm. Claim precluded?

A.
Let us assume that the statute of limitations problem is solved for the new suit. Compare VaSalle v. Celotex Corp., 161 Ill.App.3d 808, 113 Ill.Dec. 699, 515 N.E.2d 684 (1987) (claim for lung cancer not barred by earlier diagnosis of asbestosis); Wilber v. Owens-Corning Fiberglas Corp., 476 N.W.2d 74, 78 (Iowa 1991) (claim for mesothelioma did not accrue when plaintiff was diagnosed with asbestosis) with Joyce v. A.C. & S., Inc., 785 F.2d 1200, 1203-05 (4 th Cir.1986) (under Virginia law, diagnosis of pleural thickening triggered statute of limitations for all asbestos-related disease); Matthews v. Celotex Corp., 569 F.Supp. 1539, 1542-43 (D.N.D.1983) (under North Dakota law, claim for lung cancer was dismissed on statute of limitations grounds when plaintiff was diagnosed with asbestos-related pulmonary disease more than six years earlier).

Assuming the action is not barred by the statute of limitations, is P claim precluded? It would appear that he is, since the transaction at issue in the two suits is the same. But this seems very unfair to P. This is particularly true if P is not allowed to recover for the risk of mesothelioma in his first suit.

The case law on this issue is unsatisfactory. Many courts have set aside claim preclusion in such asbestos cases. Sometimes they rely upon the very vague section 26(f) of the Second Restatement of Judgments, which says that splitting of claims should be allowed if:

(f) It is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason, such as the apparent invalidity of a continuing restraint or condition having a vital relation to personal liberty or the failure of the prior litigation to yield a coherent disposition of the controversy.

See, e.g. Sopha v. Owens-Corning Fiberglas Corp., 601 N.W.2d 627, 637 (Wis. 1999), Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 654 (Tex. 2000). But not all courts have accepted such an exception to claim preclusion in asbestos cases, Gideon v. Johns-Manville Sales Corp. 761 F.2d 1129 (5th Cir. 1985) (under Texas law, plaintiff may not split this cause of action by seeking damages for some of his injuries in one suit and for later-developing injuries in another), although usually this is because an action for risk of future harm is allowed in the first suit.

The use of such an exception to claim preclusion outside of asbestos cases is less common. It remains very possible that claim preclusion (not to mention the statute of limitations) will bar a suit for new injuries that the plaintiff could not have known about at the time of the original suit.

...

37. Question about privity, control of litigation, Bernhard and change of capacity

Q.

I'm still not exactly clear on some of the privity issues. If a parent acts on behalf of her child and then brings her own suit for a car accident the parent would be precluded because she controlled the litigation of her child? she would be issue precluded?
I understand the executor of the will a little better. when acting for the decedent the executor is taking over that cause of action and in a sense putting themselves in the other person's shoes. It seems, however, here that the mother would have her own legitimate claim separate from her child.

A number of people have asked me to clarify the issue of privity that is the result of the control of litigation, especially when there is a change of capacity (eg one sues first as guardian and then as an individual). These issues were brought up in connection with the Bernhard case. As you will see, you were right to ask questions here.

First of all, as I said in class, if P brings an action in the capacity as a representative of X (eg as guardian), it should be obvious that X is subsequently issue (and claim) precluded, because a relationship of privity exists between P when acting in that capacity and X.

Second, as I also said in class, a relationship of privity can exist (allowing for issue preclusion of the nonparty) when the nonparty controlled the earlier litigation. (This incidentally would not necessarily mean that there would be claim preclusion.) Here are some examples (from the Second Restatement of Judgments section 39):

A brings an action against C for damages to A's property allegedly resulting from C's negligence. B, an insurance company that insured C against liability, assumes defense of the action. A judgment in favor of A is preclusive on B as to the issues determined in the action.

A brings an action against B, a corporation, in which one of the issues is the value of a certain object of property. C, the principal stockholder of B, controls the defense of the action. The determination of the value of the property is conclusive upon C in a subsequent action between him and A.

Notice that it not enough that the nonparty is represented by the same law firm, helped to finance the litigation, appeared as an amicus curiae, or testified as a witness. The level of control of the previous litigation must be higher than that.

Third, let us consider the Bernhard case. Remember that Bernhard, as a beneficiary of Sather’s estate, first sued Cook. It was determined that the money at issue was a gift from Sather to Cook. Next Bernhard, as administratrix of Sather’s estate, sued Bank of America for the same money. The main issue of the case was whether a nonparty (Bank of America) could use issue preclusion against Bernhard (this was an example of defensive nonmutual issue preclusion). The court concluded that BofA could. But we also briefly discussed the following problem: Even if nonmutual issue preclusion is allowed, the person who is precluded must have been a party or in privity with a party in the earlier litigation. So the question arises: Why was Bernhard, in her capacity as administratrix of Sather’s estate, bound by litigation pursued by Bernhard, in her capacity as a beneficiary of Sather’s estate?

This is what Traynor himself says on this matter (p. 729-30 in the case book):

The plaintiff has brought the present action in the capacity of administratrix of the estate. In this capacity she represents the very same persons and interests that were represented in the earlier hearing on the executor's account. Inthat proceeding plaintiff and the other legatees who objected to the executor's account represented the estate of the decedent. They were seeking not a personal recovery but, like the plaintiff in the present action, as administratrix, a recovery for the benefit of the legatees and creditors of the estate, all of whom were bound by the order settling the account. The plea of res judicata is therefore available against plaintiff as a party to the former proceeding despite her formal change of capacity. 'Where a party though appearing in two suits in different capacities is in fact litigating the same right, the judgment in one estops him in the other.'

The reason that Bernhard as administratrix of Sather’s estate is bound is because, as administratrix, she is representing, among others, Bernhard in her individual capacity, insofar as she is one of the beneficiaries of Sather’s will. The situation is really similar to the following case: I sue X and lose. I then go crazy. My wife, as my guardian, sues Y concerning the same issue that was litigated in my suit against X. My wife, as my guardian, is issue precluded, because she is representing my interest.

So far so good. Now for the law on issue preclusion in cases of change of capacity. Say my wife, as my guardian, sues X and loses. Is she, in her individual capacity, issue precluded? Consider Alexander v. Pathfinder, Inc., 91 F.3d 59, 63 (8^th Cir. 1996). The plaintiff mother took an active role in state administrative proceedings challenging the discharge of her severely retarded son from a care facility. Among other issues, she raised and litigated the argument that the discharge was undertaken in retaliation for her complaints. The administrative judgment established issue preclusion, defeating her subsequent retaliation claim in her individual capacity.

But always assuming issue preclusion when there is a switch in capacity can be problematic because of conflicts of interest. Consider, once again, the example of my wife. She would have a conflict of interest if what she litigates as my guardian would issue preclude her as an individual as well. After all, what is good for me might not be good for her. We should not require her to make the choice between her own interest and mine.

As it turns out, for precisely these reasons, there is not, in general, issue preclusion when there is a change in capacity. The only exceptions, which would explain the Alexander case, is when no conflict of interest problem exists. Here is an example from the Second Restatement of Judgments section 36:

AIn a collision between cars driven by A and B, A is injured, B is killed, and C, who is B's wife, is also injured. A brings an action for his injuries against C as administratrix of B's estate. Judgment is for A. If C subsequently sues for her own injuries, she is not precluded from relitigating the issues determined in the first action.

38. Question about impleaders and interpleaders.

Q.
Somewhere along the lines in my notes and outline I started using impleader and interpleader interchangably. I was wondering if you could clarify the difference.

A.
An impleader is when defendant brings in a new party under R 14, that is, because the new party is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant. They include claims for indemnification, contribution, etc. Impleaders can also be brought by those being sued in cross-claims, counterclaims and impleaders.

I don't think I ever mentioned an interpleader in class. That is when someone who thinks he might be sued by a number of plaintiffs and exposed to double or multiple liability if separate actions were brought can bring these potential plaintiffs all together in the same action. It solves the problem of P1 suing me claiming ownership of a vase in my possession (with P1 winning and getting the vase), followed by P2 suing me for ownership of the vase (with P2 winning and getting damages worth the value of the vase). I can solve that problem by bringing P1 and P2 together in a single suit concerning ownership of the vase. See R 22.

39. Question about sanctions in connection with depositions

Q.
Pretty sure I know the answer to this already, but wanted to hear some background I guess: if a witness is just absolutely uncooperative in a deposition, can she be held in contempt? I'm sure the answer is no because the lawyers are not about to make a citizen's arrest in their own office! But in such a case, what options are available to the lawyers. SOMETHING must be available, or else all witnesses would just refuse to testify until trial.

A.
First of all, if a party simply fails to show up for a deposition, that party can be sanctioned under R 37(d). As for non-parties, if they fail to show up, you must make a motion to compel under R 37(a), which requires "a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action." If the motion is granted and ignored by the witness, this will result in sanctions under R 37(b). But what if a party or non-party witness shows up but makes frivolous objections to the questions asked? You must then make a motion to compel, again under R 37(a). If the motion is granted and ignored, then you can get sanctions under R 37(b).

40. Question about claim preclusion for default judgments.

Q.
For res judicata, if a party defaults on a judgment does res judicata apply? It doesn't seem like it would for issue preclusion, because that issue hasn't been fully litigated. But I am not so sure about claim preclusion.

A.
There is claim preclusion for a default judgment (but not issue preclusion). If P sues D and gets a default judgment, P may not sue D again concerning the same transaction or occurence. Likewise D is bound by that judgment, so long as it stands. But D can, of course, get the judgment set aside, if he can show there was no SMJ, PJ etc. If the judgment is set aside, then neither P nor D is claim precluded.

41. Question about claim preclusion and R. 41(b).

Q.
Is the claim preclusive effect of a default judgment governed by R 41(b)? I still can't clearly understand the relationship between claim preclusion and R41(b).

A.
The question of the claim preclusive effect of a default is not governed by 41(b). First of all, a default judgment is not an involuntary dismissal, and R 41(b) only covers involuntary dismissals. Second, as Semtek states, 41(b) is not about the claim preclusive effect of an involuntary dismissal; it only covers the effect of an involuntary dismissal within the same jurisdiction.

42. Question about state courts deciding issues of federal law.

Q.
Just as the fed courts are merely "predicting" state law in diversity cases (in that they don't bind the state courts) are state cases ruling on federal questions with concurrent jurisdcition merely "predicting" how a federal court would rule on the federal question?

A.

First of all, I assume here that you are asking whether a state court should predict what the US SCt would do, not what a federal court would do. This would make the situation parallel to a federal court deciding an issue of state law, where a federal court decides as it predicts the relevant state SCt would.

This is a great question and the answer is NO.

The reason that federal courts sitting in diversity must predict what the relevant state supreme court would say is that there is no avenue of appeal from the federal court system to the state supreme court. On the other hand, there is an avenue of appeal from the state court system to the US Supreme Court. Therefore state courts, like lower federal courts, are bound by musty US SCt cases, even when they know that the US SCt would now say otherwise. They may not rule as they predict the US SCt would decide.

43. Question about special appearances.

Q.

I have a question about special appearances. I am going back through the text book, and I am now confused. In class we have discussed the ability to make a special appearance to challenge personal jurisdiction. The F&K book (p.495) appears to say that this is not allowed, but that D can challenge PJ through a pre-answer motion or answer.

When we refer to "special appearances" in class, are we really just referring to filing pre-answer/answer motions to challenge PJ? Or are we saying D personally goes to the state to argue PJ? In both state and federal court?

A.

There are two sense of special appearances (I mentioned this briefly in class). On the one hand a special appearance can mean only that the D may appear and challenge PJ without submitting himself to PJ by his very presence. Special appearances in this sense are allowed in federal court. If special appearances in this sense are not allowed, then the D can never challenge PJ except by defaulting and collaterally attacking when P sues on the judgment in a different forum.

On the other hand, there is another (and more common) sense of special appearance that refers to a situation where the D can appear and challenge PJ, but only when he mentions PJ alone. If he conjoins the defense of PJ with other defenses (eg failure to state a claim), then he will have waived the defense of PJ. This is the sense in which the term is used in F&K. Special appearances in this sense do not exist in federal court.

44. Question about nonmutual issue preclusion.

Q.

I know the difference b/t offensive and defensive use and the difference b/t direct and collateral, but none of those seem to fit the following scenario:

A, B, and C get into an accident simultaneously. A sues B claiming that B is at fault for the accident. The trial court finds A was really at fault for the entire accident and enters judgment for B. If C were to then sue B claiming that B was a fault for the accident, can B then use the judgment entered in his favor to issue-preclude C from relitigating fault by claiming that 1st trial court found that B was not at fault?

A.
No - issue preclusion is impossible here (unless there is some story about why C was in privity with A). Due process demands that C not be bound by any determination of an issue that he (or his privy) did not participate in.