Old class questions

EXAMPLES of service on individuals under the federal rules (4e)

P files an action against D in the E.D. Va. for violation of federal law. P has his lawyer drive to D’s home in Massachusetts. No one is home, so the lawyer slips the summons and complaint under the front door.

P files an action against D in the E.D. Va. for violation of federal law. D resides in Boston, Massachusetts and has a summer home in Martha’s Vineyard. P waits 3 months after filing to have a process server deliver a copy of the summons and complaint to D at his summer home.

The P Corp. files an action against D in the E.D. Va. for violation of federal law. The P Corp. waits 3 months after filing to have an employee of the P Corp. deliver a copy of the summons and complaint to D at his summer home.

P files an action against D in the E.D. Va. for violation of federal law. P has his brother leave a copy of the summons and complaint with D’s 16 year-old daughter who is staying at D's summer home on Martha's Vineyard.

P files an action against D in the E.D. Va. for violation of federal law. P serves D in accordance with Fed. R. Civ. P. 4(e). D files an answer, which includes a counterclaim against P, and serves P by mailing a copy of the answer and counterclaim to P's attorney.

Service on corporations and unincorporated associations

1) P files an action against the D Corp. in the E.D. Va. for violation of federal law. P serves the D Corp. by having a process server leave a copy of the summons and complaint with the foreman at the D Corp's main manufacturing plant in Pa.

2) P files an action against the D Corp. in the E.D. Va. for violation of federal law. P serves the D Corp. by having his brother leave a copy of the summons and complaint at the house of the D Corp's CEO in Pa., with the CEO's 18-year old son who lives there.

Diversity Jurisdiction

1) P, a citizen of California, sues the D Corp. in federal court in the N.D. Cal. under state law for more than $75k. The suit concerns a faulty lighter (made by the D Corp.) that P bought from a store in the N.D. Cal. and that blew up in P’s home in the N.D. Cal. The D Corp. is incorporated in NJ and has its three of its four manufacturing plants and 2/3 of its employees in Texas. Its other plant and around 1/4 of its employees are in Louisiana. Its financial and administrative headquarters is in LA (in the Cent. D. Ca.), where the President, Board of Directors and 1/12 of its employees are located. The faulty lighter at issue was manufactuered in Texas. Diversity case?

2) P, a citizen of California, sues the D Corp. in federal court in the N.D. Cal. under state law fraud for more than $75k. The D Corp. is incorporated in Texas. It has 1/3 of its employees working phones in Texas, the rest scattered throughout the country. The financial and administrative headquarters is in LA (in the Cent. D. Cal.) with 1/12 of its employees located there, including its President. The fraudulent statement at issue was uttered by the D Corp.'s President in California. P's heard the statement and detrimentally relied upon it in California. Diversity case?

3) Panama & Venezuela (Panama) reincorporates in Texas. Subsequently it brings suit against Caribbean Mills (Haiti) for breach of contract in federal court. Subject matter jurisdiction under 1332?

4) Panama & Venezuela (Panama) sells its contract right to Kramer (Texas) for $100,000, reserving no interest in the contract claim. Subsequently Kramer brings suit against Caribbean Mills (Haiti) for breach of contract in federal court. Subject matter jurisdiction under 1332?

5) P (Texas) sells its contract right against D (New York) to Kramer (New York) for $1, with Kramer promising to pay back 95% of any recovery as a bonus. Kramer sues D in state court. May D remove to federal court, using 1332 as the source of subject matter jurisdiction?

6) Could D remove if P had sold 1/100 of its interest in the suit to Kramer for $1000 and P and Kramer sued D as co-plaintiffs in state court?

7) P (NJ) wishes to sue the D Corp. for fraud. The D Corp. is incorporated in NY with PPB in NY. P does not want the action removed by the D Corp. to federal court. Therefore P joins X (NJ), an accountant who was in part responsible for the D Corp.’s misrepresentations, as a defendant. Can the D Corp. successfully remove?

Removal

1) A (Cal.) sues B (Cal.) under 42 USC § 1983 (civil rights action) for illegal search and seizure. Suit is brought in California state court in San Francisco. May B successfully remove to the N.D. Cal.?

2) A (Cal.) sues B (NY) and C (Cal) for battery in state court in Richmond VA. Can B and C remove to the E.D. Va.? Can B remove the action against him alone?

3) A (Cal.) sues B (NY) and C (NJ) for battery in state court in Richmond VA. A is suing for B for more $100,000 in damages but C for only $5000. Is removal to the E.D. Va. possible?

4) A (Cal.) sues Officer B (Cal.) in California state court in San Francisco in connection with an arrest. A has two causes of action against B: violation of federal civil rights and state law battery. May B remove to the N.D. Cal.?

5) A (Nev.) sues B (Cal.) and C (Oreg.) in California state court in San Francisco for battery. A asks for $80,000 each from B and C. May the case be successfully removed by B and C to the N.D. Cal?

6) A (Nev.) sues B (Cal.) and C (Oreg.) in Nevada state court for battery. A asks for $80k each from B and C. B wants to remove but C refuses. May the case be successfully removed to the D. Nev.?

7) Officer A (Cal.) sues B (Cal.) in California state court in San Francisco for battery in connection with A's arrest of B. B counterclaims against A for violation of federal civil rights law. May A remove? Does Mottley answer this case?

8) P (Mass.) sues Officer D (Mass.) in Mass. state court for violation of federal civil rights law. P has process server (not a sheriff) serve D by leaving the summons and complaint at D's house in Mass. with a person of suitable age and discretion residing therein. D removes the action to the D. Mass. and makes motion to dismiss for insufficiency of service. What result?

9) P (Mass.) sues D (NY) in Mass. state court under state law battery. D removes and then makes a motion to dismiss for lack of PJ. Permissible?

Jurisdictional Minimum

1) P (NY) brings an action against D (NJ) in NY state court for loss of his hand in a car accident. P asks for $70k. May D remove? What should the standard be?

2) P (NY) is suing D (NJ) in federal court asking (under state nuisance law) for an injunction against D to get D to shut down his smelly taxidermy service. How do you determine whether this is a diversity case? Would your answer be the same if P's suit were brought in state court and D had remove?

3) P (NY) brings $50,000 breach of contract claim together with an unrelated $50,000 battery claim against D (NJ). Diversity case?

4) P and D had an agreement for P to do work for D for $50,000. P does the work but D doesn't pay. In P's (NY) complaint against D (NJ), P asks for $50,000 under a theory of breach of contract. Alternatively - if it is found that there is no contract - he asks for $40,000 in quantuum meruit (equitable action - the fair market value of the labor he performed). Diversity case?

5) P1 (NY) and P2 (NY) join to bring battery actions against D (NJ) concerning a brawl in which all three were involved. Each asks for $50,000 in damages. Diversity case?

6) Consider the following scenario: Someone has died. The two children of the decedent (P1 and P2) are the distributees of his estate -- that is, they have a right to inherit. P1 and P2 bring an action against the executor of the estate (D), who, they allege, has absconded with $80,000. $40,000 of that should go to P1 and $40,000 to P2. Under an exception to the nonaggregation rule, announced in Shields v Thomas, 58 U.S. (17 How.) 3 (1855), P1 and P2 may aggregate their claims against D to meet the jurisdictional minimum. What is unusual about their claims against D that would make aggregation possible here?

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?

Personal Jurisdiction

1)Mitchell, an Oregon resident, sues Neff, a California resident, in Oregon state court for unpaid lawyer’s fees that Neff incurred in Oregon while he was a resident of Oregon. Service of the summons and complaint are delivered to Neff in hand in California. PJ?

2) Mitchell, an Oregon resident, sues Neff, a California resident, in Oregon state court for unpaid lawyer’s fees that Neff incurred in Oregon while he was a resident of Oregon. There is in-hand service of the summons and complaint upon Neff while he is in Oregon on a brief business trip. PJ?

3) Mitchell, an Oregon resident, sues Neff, a California resident, in Oregon state court for unpaid lawyer’s fees that Neff incurred to Mitchell in California – Neff was never an Oregon resident. There is in-hand service of the summons and complaint upon Neff while he is in Oregon on a brief business trip. PJ?

4) Pennoyer, an Oregon resident, sues Neff, a California resident, in Oregon state court in order to quiet Pennoyer’s title to the property in Oregon that each claims he owns. Service on Neff is in-hand in California. In rem, quasi-in-rem or in personam?

5) Pennoyer, an Oregon resident, sues Neff, a California resident, in Oregon state court in order to compel Neff to abide by their contract of sale and turn over to Pennoyer property in California. Service is in hand on Neff in Oregon. In rem, quasi-in-rem or in personam?

6) Mitchell brings an action against Neff in Oregon state court concerning $253.14 in legal fees. Neff resides in California. The Oregon state court attaches property owned by Neff worth $300 at the beginning of the suit. In rem, quasi-in-rem or in personam?

7) Mitchell brings an action against Neff in Oregon state court concerning $253.14 in legal fees. Neff resides in California. Service is by publication repeatedly in every newspaper in California. The Oregon state court attaches property owned by Neff worth $300 when the judgment in favor of Mitchell is executed. PJ?

8) Mitchell brings an action against Neff in Oregon state court concerning $253.14 in legal fees. The personal jurisdictional basis for the suit is $200 property in Oregon owned by Neff. The Oregon state court attaches the property at the beginning of the suit. Neff defaults. The property is sold and the money given to Mitchell. Mitchell then brings a suit in California state court to recover the remaining $53.14. Service on Neff is in-hand on California. Mitchell asks the California court execute the Oregon judgment by attaching $53.14 from Neff's bank account in California and giving it to Mitchell. What result?

9) Same as 8, except that Mitchell's second suit in California is not to execute the Oregon judgment, but to decide liability for the remaining $53.14. Is Mitchell claim precluded?

10) Mitchell brings an action against Neff in Oregon state court concerning $253.14 in legal fees. The personal jurisdictional basis for the suit is $200 property in Oregon owned by Neff. The Oregon state court attaches the property at the beginning of the suit. Neff appears, but loses on the merits. The property is sold and the money given to Mitchell. Mitchell then brings a suit in California state court to recover the remaining $53.14. Service on Neff is in-hand on California. Mitchell asks the California court execute the Oregon judgment by attaching $53.14 from Neff's bank account in California and giving it to Mitchell. What result?

11) Same as 10, except that Mitchell's second suit in California is not to execute the Oregon judgment, but to decide liability for the remaining $53.14. Is Neff precluded from relitigating issues that were decided in the earlier suit, for example, that there was a valid contract between Mitchell and Neff, that Mitchell performed legal services, and that the value of the services was at least $200?

12) Mitchell lures Neff to Oregon with a story that Neff has won a contest. While he is in Oregon, Neff is served for a suit brought by Mitchell in Oregon state court concerning unpaid lawyer’s fees. Neff chooses to default. Under Oregon law, someone can be submitted to personal jurisdiction on the basis of tagging in the state even when the tagging is the result of fraudulent inducement. Mitchell then brings a suit in California state court to execute the Oregon judgment. Under California law someone cannot be submitted to personal jurisdiction on the basis of tagging in the state when the tagging is the result of fraudulent inducement. Neff argues that the earlier Oregon judgment is void. What result?

13) Mitchell sues Neff in Oregon state court. Neff has no connection to the state but does not want to default. He appears solely for the purpose of challenging personal jurisdiction. May the Oregon court nevertheless take Neff's presence (including through his lawyer) to be consent to in personam jurisdiction?

14) Mitchell sues Neff in Oregon state court. Neff has no connection to the state but does not want to default. He appears for the purpose of challenging personal jurisdiction but also adds the defense of failure to state a claim. What result?

15) Mitchell brings an action against Neff in Oregon state court concerning $253.14 in legal fees. The personal jurisdictional basis for the suit is $200 property in Oregon owned by Neff. The Oregon state court attaches the property at the beginning of the suit. Neff appears, but solely to litigate liability up to the value of the property attached. May the Oregon court nevertheless take Neff's presence (including through his lawyer) to be consent to in personam jurisdiction to litigate the entire amount?

16) Mitchell has Neff tagged in Oregon while he is there for a business trip. Mitchell's suit is in Oregon state court and concerns unpaid lawyers fees. Neff appears to litigate the merits. While Neff is there Pennoyer has him served in connection with another unrelated suit, brought in Oregon state court, concerning a brawl in California. Neff chooses to default on the second suit. Under Oregon law, someone can be submitted to personal jurisdiction on the basis of tagging in the state even when in the state for litigation. Pennoyer then brings a suit in California state court to execute the Oregon judgment. Under California law someone is immune from service (in other words, cannot be submitted to personal jurisdiction) while in the state for litigation activities. Neff argues that the earlier Oregon judgment is void. What result?

17) Neff is domiciled in Oregon, but is on an extended trip in California. Mitchell sues Neff in Oregon state court. He has Neff served in California. Neff defaults. Mitchell then brings a suit in California state court to execute the Oregon judgment. What result?

18) Oregon passes statute stating
“Anyone who sets foot in Oregon implicitly appoints the secretary of state of Oregon as his agent for service of process for causes of action arising from activities in Oregon.”
Mitchell sues Neff, who has driven in Oregon, in Oregon state court for unpaid lawyers’ fees and serves the Oregon secretary of state. Is there personal jurisdiction under a Pennoyer theory? Is due process satisfied as far as notice is concerned?

19)Oregon passes statute stating

“Anyone who drives in Oregon implicitly appoints the secretary of state of Oregon as his agent for service of process for any cause of action, including those not arising from activities in Oregon.”
Mitchell sues Neff in Oregon state court and serves the Oregon secretary of state. Is there personal jurisdiction under a Pennoyer theory?

20)Oregon passes statute stating

“Any corporation doing business in Oregon implicitly appoints the secretary of state of Oregon as his agent for service of process for causes of action concerning the Oregon business activities.”
The Neff Corp. (of California) sold some shoes to Mitchell in Oregon. Mitchell sues the Neff Corp. for breach of contract (the shoes fell apart) in Oregon state court and serves the Oregon secretary of state. Is there personal jurisdiction under a Pennoyer theory?

21) The Neff Corp. is incorporated and has its principal place of business in California. But it does substantial business in Oregon, selling close to 3 million pairs of shoes a year. It has not appointed an agent for service of process, nor does Oregon have a statute claiming that by doing business in the state an agent for service is impliedly appointed. Mitchell sues Neff for breach of contract (the shoes he bought in the state fell apart). Is there PJ under a Pennoyer theory?

22) Same as 21, except Mitchell’s cause of action concerns shoes he bought in Nevada, wore in Nevada and fell apart in Nevada.

General PJ

1) P (Cal) sues D Corp. (Oregon) in Nevada state court for harm due to product sold to him in Cal. and manufactured in Oregon. D Corp.'s connection with Nevada is that it solicits purchases from stores in Nevada. (Shipments to Nevada are through a separate distributing company.) P chose to sue in Nevada because the statute of limitations is longer. Is there PJ? What if the D Corp. ships $2 million worth of drugs to Nevada? What if it ships $2 million worth of the very type of drug that harmed P?

2) Ex Parte Newco Mfg, 481 So.2d 867 (Ala. 1985). Ala. P (but was in Tenn. at time of accident) brings wrongful death action against NewCo (Missouri), the manufacturer of thimble clamps for grist blast machine. The manufacture and sale occurred in MD. The accident occurred in Tenn. But Newco's annual sales in Alabama during the period of January 1979 to December 1984 ranged from $65,000 to $85,000, with a total of 2,000 transactions. PJ?

3) Pedelahore v. Astropark, Inc., 745 F.2d 346 (5th Cir. 1984). La. P injured atAstroworld in Houston TX. Astropark a Delaware corp. with PPB in Texas. What are the minimum contacts between Astropark and the people and State of Louisiana?

    (1) An advertising program aimed at Louisianians, including the distribution of brochures and thousands of radio and television spots, together with advertisements in local, national, and regional publications, all extolling the wonders of Astroworld and encouraging visitors to attend.

    (2) A ticket consignment agreement with all Louisiana travel agencies authorizing those agencies to sell Louisiana residents tickets to Astropark's facilities.

    (3) The conducting of a three-day seminar in New Orleans in December 1982 by the Astropark Marketing Department, aimed, inter alia, at developing business from Louisiana for the Houston operation.

    (4) The appointment of a sales representative with Louisiana as her area of responsibility.

PJ in La.?

Specific PJ

1) D is incorporated in Oregon, does all its manufactoring in Oregon, and has all its offices there. P reads D's advertisement in a newspaper in California. P places an order by a phone call; that P makes to Oregon. D ships the good to California. PJ over D in California for a suit concerning the defectiveness of the product?

2) Assume P calls D merely after having read D's website, which includes D's phone number in Oregon. PJ over D in California for a suit concerning the defectiveness of the product?

3) Assume P calls D merely after having heard about D from a friend who bought D's products in Oregon. PJ over D in California for a suit concerning the defectiveness of the product?

4) D hires a national recruiting service (located in New York) to hire an engineer to work for a year in Oregon. P, who lives in California, is contacted by the service and agrees to work in Oregon. There he is injured on the job. After returning to California, he sues D in California state court for his injuries. PJ?

5) Wife who has moved with her children from NY to Cal. w/ consent of former husband sues former husband (still a NY domiciliary) for child support in Calif. Former husband served in NY. PJ in Cal.?

6) Andrews University v. Robert Bell Industries, Ltd., 685 F.Supp. 1015 (W.D. Mich. 1988). Michigan P goes to Ontario D to buy boiler. Ontario D agrees, ships the boiler FOB Ontario. D has sold only three other boilers to companies in Michigan. Boiler is defective. P sues for breach in Michigan state court. PJ?

7) Chung v. NANA Development Corp., 783 F.2d 1124 (4th Cir. 1986). Va. P goes to Alaska to buy reindeer horns from Alaska D. Wants horns to remain frozen. Requests that the D ship some of them to him in Va. When they arrive in Va. they are melted. P sues D in federal court in Va. PJ?

8) Thompson v. Chrysler Motors Corp., 755 F.2d 1162 (5th Cir. 1985). Miss. P goes to Ala. D to buy car. Returns with car to Miss. Car has problems, P makes many phone calls to Ala. and returns a number of times to Ala. for repair. Finally D ships a master cylinder to P in Miss. for use in repair there. Cylinder is defective and accident occurs. P sues D in Miss. state court. PJ?

9) Bensusan Restaurant Corp., v. King, 937 F.Supp. 295 (S.D.N.Y.1996). Bensusan, the operator of a New York jazz club sued the operator of a Missouri jazz club for trademark infringement. The Missori club's internet web site at issue contained general information about the defendant's club, a calendar of events and ticket information. The site was not interactive. If a user wanted to go to the club, she would have to call or visit a ticket outlet and then pick up tickets at the club on the night of the show. PJ over the Mo club in NY?

10) D is incorporated in Oregon, does all its manufactoring in Oregon, and has all its offices there. P reads D's passive website in California. P places an order by a phone call to Oregon. D ships the good to California. PJ over D in California for a suit concerning the defectiveness of the product?

11) D Co. of NY designs a drug for Tropical Fever that it markets in tropical countries. The X Distributing Co. discovers that the drug is useful for Arctic Fever. It buys large amounts and markets the drug to areas above the Arctic Circle. The D Co. knows about X Distributing’s activities but does nothing to encourage it. Eventually 90% of the drug is sold in Arctic areas. Is there PJ over the D Co. in Alaska concerning P’s purchase of the drug there?

PJ in federal court under FRCP 4(k)

1) P (NJ) sues D (NY) in S.D.N.Y. Suit is under MD battery law concerning a brawl between P, D and X in MD. D impleads X, on the grounds that if D is liable to P, X will be liable to D because they were acting as joint tortfeasors in the brawl X is served while in Greenwich CT on a brief trip. PJ over X (assume no contacts between X and NY)?

2) P (NJ) sues D (NY) in S.D.N.Y. Suit is under MD battery law concerning a brawl between P, D and X in MD. D impleads X, on the grounds that if D is liable to P, X will be liable to D because they were acting as joint tortfeasors in the brawl. X is domiciled in Greenwich CT. X is served however in Hartford CT (more than 100 miles from SDNY). PJ over X (assume no contacts between X and NY)?

3) P (NJ) sues D (NY) in S.D.N.Y. Suit is under MD battery law concerning a brawl between P and D in MD. D impleads X, his insurance company. The X insurance company is incorporated in Cal. and has its PPB in Cal. It does no business in CT. The CEO of the X insurance co. is served while in Greenwich CT on a brief trip. PJ over X (assume no contacts between X and NY)?

4) P (NJ) sues D (NY) in S.D.N.Y. Suit is under MD battery law concerning a brawl between P and D in MD. D impleads X, his insurance company. The X insurance company is incorporated in Cal. and has its PPB in Cal. It does substantial and continuous business in CT however, although all of this business is in Hartford. The CEO of the X insurance co. is served while in Greenwich CT on a brief trip. PJ over X (assume no contacts between X and NY)?

5) P (NJ) sues D (NY) in S.D.N.Y. Suit is under MD battery law concerning a brawl between P and D in MD. D impleads X, his insurance company. The X insurance company is incorporated in Cal. and has its PPB in Cal. The insurance contract between D and X was sent out from a small X office in Greenwich CT, subsequently closed, to D while D was living in Wisconsin. The CEO of the X insurance co. is served while in Greenwich CT on a brief trip. PJ over X (assume no contacts between X and NY)? [NOTE: I changed this question somewhat from what I offered in class. Alvin Shields noticed that, as the question was originally formulated (where X sent the insurance contract from CT to P in NY), there would be PJ over X in a NY state court, making the use of FRCP 4(k)(1)(B) unnecessary.]

6) Same as 5, except, under CT law no PJ would be asserted over X if the suit were brought in CT, because it would not fall under CT's long-arm statute. PJ over X?

7) P (Va.) brings suit in federal court in Virginia against D, a German domiciliary residing in Germany, for a battery that the German committed against him in New York. The German has no other contacts with the United States besides the brief trip to NY during which the alleged battery occurred. Is there PJ?

8) Yasser Arafat is sued under a federal antiterrorism act allowing for American victims of foreign terrorism to sue for damages. (The alleged acts of terrorism in this case occured in Israel.) The action is brought in federal court in New York. Is there PJ?

Venue

<>1) P (San. Fran. – N.D. Cal.) sues D1 (NYC – S.D.N.Y.) & D2 (Buffalo – W.D.N.Y.). Suit is under 42 U.S.C. § 1983 concerning an allegedly unlawful arrest that occurred in an airport in NJ (D.N.J.)
D1 and D2 were each served at their homes. SMJ?
Venue in
–N.D. Cal.?
–S.D.N.Y.?
–W.D.N.Y.?
–E.D.N.Y.?
–D.N.J. ?
PJ in
NY?
NJ?
Cal.?

2) P (San. Fran. – N.D. Cal.) sues D1 (NYC – S.D.N.Y.) & D2 (Conn – D.Conn). Suit is under 42 U.S.C. § 1983 concerning an allegedly unlawful arrest that occurred in New Jersey (D.N.J.) D1 and D2 each served at their homes.
SMJ?
Venue in
    N.D. Cal. ?
    S.D.N.Y. ?
    W.D.N.Y. ?
    N.D.N.Y. ?
    D.N.J. ?
PJ over defendants if brought in
    Cal.
    N.Y.
    Conn.
    N.J.

3) P (San. Fran. – N.D. Cal.) sues D1 (NYC – S.D.N.Y.) & D2 (Conn – D.Conn). Suit is a Cal. State law breach of contract action concerning a contract signed in San Francisco for the construction of a hospital in Albany (N.D.N.Y.). D1 and D2 each building part. P claims hospital is not according to plans. D2 has a vacation home in the Hamptons (E.D.N.Y.). D1 served at home, D2 at vacation home.
    SMJ?
Venue in?
–N.D. Cal.
–S.D.N.Y.
–W.D.N.Y.
–N.D.N.Y.
–E.D.N.Y.
–D.Conn.
PJ?
Cal.
N.Y.
Conn.

4) P (S.F. – N.D. Cal.) sues the D1 Corp. & the D2 Corp. Suit is a Cal. State law breach of contract action concerning a contract signed in San Francisco for the construction of a hospital in Albany (N.D.N.Y.) D1 Corp. built foundation; D2 Corp. built structure. D1 Corp. incorporated in New York; main office in NYC (S.D.N.Y.); large branch office in Philadelphia (E.D. Pa.). D2 Corp. incorporated in Delaware (D. Del.); main office in Pittsburgh (W.D. Pa.); large branch office in Boston (D. Mass.)

Is there SMJ?

Venue in?
– N.D. Cal.
–N.D.N.Y.
–S.D.N.Y.
–W.D.N.Y.
–E.D.N.Y
–E.D. Pa.
–W.D. Pa.
–D. Del.
–D. Mass.

    PJ over Ds
    in Cal
    in Pa
    in NY
    in Del
    in Mass

<>5) P (S.F. – N.D. Cal.) sues the D1 (D. Mass.) & D2 (D. Del.). Suit is breach of contract action concerning a contract signed in London for the construction of a hospital in Paris. D1 built foundation; D2 built structure
Venue?
D. Del.
D. Mass.
N.D. Cal.

Answers, pre-answer motions, waiver of defenses, amendment

1) P sues D for breach of contract. D’s answer includes the affirmative defense of laches, which is an equitable doctrine barring stale claims, similar to a statute of limitations for actions at law. Laches applies only to equitable actions. P’s action is an action at law and is inside the statute of limitation. P wants to remove this silly affirmative defense from consideration. What does P do?

2) P serves D in suit for battery. Within 20 days D makes a motion to dismiss for lack of PJ. D’s motion is rejected by the court. May D make another pre-answer motion to dismiss for improper venue? May D introduce venue as a defense in his answer? May D introduce failure to state a claim in a second pre-answer motion? May D introduce failure to state a claim in his answer? After the pleading period? In motion for j on the pleadings? May D introduce lack of SMJ in a second pre-answer motion? In his answer? After the pleading period?

3) P serves D in suit for battery. Within 20 days D answers. May D include with that answer the defense of lack of PJ? After the answer may D make a motion to dismiss for lack of SMJ? After the answer, may D ask for a judgment on the pleadings on the ground that P fails to state a claim? After the answer, may D make a motion to dismiss for insufficient service? May D save the defense of insufficient service by including it the answer by an amendment under R. 15 “as a matter of course”?

4) P serves D in suit for battery. Within 20 days D makes a motion for a more definite statement and a motion to dismiss for lack of PJ. The court grants the motion for a more definite statement but denies the motion to dismiss. P responds to the motion for a more definite statement, serving D with an amended complaint. D makes a motion to dismiss for failure to state a claim and a motion to dismiss for insufficient service. What result?

5) P files a complaint and serves D. D makes a pre-answer motion to dismiss for insufficiency of service. The court considers the pre-answer motion for 3 months. The day before the court renders its decision, P makes a motion to amend his complaint “as a matter of course." May P do so?

6) P files a complaint and serves D in accordance with R. 4. D answers, introducing the affirmative defense of statute of limitations. 25 days later, D makes a motion to amend his answer “as a matter of course” to include the defense of insufficiency of process. May he amend as a matter of course? If he is allowed to amend, is the insufficiency of service defense saved?

7) P files a complaint and serves D. D submits a pre-answer motion to dismiss for failure to state a claim. The next day, D attempts to amend his motion to introduce the defense of insufficient service. Can the defense be saved through the amendment?

8) P sues D for negligent manufacturing because the product he bought blew up in his face. After the statute of limitations ran, he amended his complaint to allege a breach of the warranty as well, since the warranty said "Our products will not blow up." Relation back under Blair v. Durham?

9) P sues D for negligent manufacturing because the product he bought blew up in his face. After the statute of limitations ran, he amended his complaint to allege negligent hiring of workers – in particular the hiring of an employee with a criminal record for maliciously putting bombs in products. Relation back under Blair v. Durham?

10) P sues an individual doing business under the name of "Malibou Dude Ranch." After the limitations period has run P discovers that the owner of the business is"Malibou Dude Ranch, Inc.," a corporation, and that the individual was merely the corporation's agent, who was competent to receive service on behalf of the corporation. P amends his complaint to make Malibou Dude Ranch Inc. the defendant. Relation back?

Counterclaims

1) P sues D in federal court. D fails to bring a cause of action against P that concerns the same T or O as P’s claim against D. D subsequently sues P in New York state court on the cause of action he refrained from bringing in the federal suit. New York has no compulsory counterclaim rule. Is D barred from bringing the cause of action anyway?

2) P sues D in NY state court. D fails to bring a cause of action against P that concerns the same T or O as P’s claim against D. D subsequently sues P in federal court on the cause of action he refrained from bringing in the New York suit. Is D barred from bringing the cause of action?

1) P sues D in federal court in Cal. D makes pre-answer motion to dismiss for lack of PJ. D's motion is granted. Subsequently D sues P in federal court in NY on a cause of action that concerns same T/O as P’s earlier claim against D. P asserts defense that D is precluded from bringing action because it was a compulsory counterclaim in the earlier suit? Barred?

2) P, X and D get into a brawl. P sues D for battery.
May D counterclaim against P for breach of an unrelated contract?
Must he?
May D bring a counterclaim against P for D's damages in the brawl?
Must he?
Must D join X to his counterclaim against P?

3) Officer X (NY) knows that he is likely to be sued under federal civil rights law by Y (NY). He feels that a New York state court would be more favorable to him than a federal court. How might X use the compulsory counterclaim rule (assuming it applies in NY state court) to ensure a NY state court forum for Y’s federal civil rights action?

4) Assume that D (Cal.) has contracted to buy a $45,000 car from P (NY). D has paid no deposit. D finds that the car is defective and refuses to pay. P sues D for the $45,000 in N.Y. state court. D brings a permissive counterclaim for breach of an unrelated contract for $45,000. May P remove to federal court? May D remove to federal court? Could D remove if his permissive counterclaim were for $80,000?

5) Assume that D (Cal.) has put $40,000 down to buy a $80,000 car from P (NY). D finds that the car is defective and refuses to pay the remaining $40,000. D also wants P to take the car and give D his deposit back. P sues D for the remaining $40,000 in N.Y. state court (which we can assume has a compulsory counterclaim rule). D brings his compulsory counterclaim for $40,000. May P remove to federal court? May D remove to federal court? Could D remove if the deposit was $76,000 and P was suing for the remaining $4000?

6) 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"?

7) Same as 6, except D joins a counterclaim for breach of an unrelated contract.

Permissive joinder of parties

1) A, B and C, each driving separate cars, get into a car accident. May both B and C join to sue A? Must they? May A sue both B and C? Must he?

2) P entered into two contracts, one for D1 to build him a house and one for D2 to mow his lawn. D1 and D2 each breach their contracts, claiming that a term in the contract is unconscionable. The same term is at issue in both contracts. May P sue D1 and D2 in the same suit for breach of contract?

3) P (Cal.) got into a car accident in Oregon with D1 (Oregon). Immediately after the accident, P went to his doctor D2 (Nev.), who, P claims, exacerbated the damages from the accident. P sues D1 and D2 in federal court in Oregon. Is joinder of D1 and D2 appropriate under 20(a)? Is there venue in D. Ore. for P's actions against D1 and D2? Is there PJ over D1 and D2 in federal court in Oregon?

4) P sues D1 and D2 for a 4-car pileup in Vermont. May D1 join X, who was the driver of the fourth car for his damages? May D1 cross-claim against D2 for damages D2’s car did to D1’s car? May D1 join X to that cross-claim?

5) P sues D for battery concerning P’s damages from a barroom brawl? May D counterclaim against P for his damages from a different brawl between P, D, and X? May D join X to this counterclaim?

Impleaders

1) P, Z, and X are in a barroom brawl. P sues Y, Z’s employer on the ground that Z’s battery was committed in the course of employment. May Y implead Z? May Y implead its insurer I?

2) Assume that P sues Z alone. May Z implead X?

3) P (NJ) sues D (NY) in S.D.N.Y. Suit is under MD battery law concerning a brawl between P and D in MD. May D join an indemnification action against X, his insurance company? Is there SMJ for P's suit against D if X's state of incorporation is NJ? Is there SMJ for D's impleader against X if X's state of incorporation is NY?

4) Continuing 3. Assume that X insurance company is incorporated in Cal. and has its PPB in Cal. X has done no business and has no presence in the state of New York. Would there be venue for D's suit against X if it were an independent suit brought in the S.D.N.Y.? Is this a problem for D's joined indemnification action?

5) Continuing 3. For what you know so far, Would there be PJ over X if D's indemnification action were an independent suit brought in the S.D.N.Y.? Is this a problem for D's joined indemnification action?

6) Continuing 3. The insurance contract between D and X was sent out from a small X office in Greenwich CT, subsequently closed, to D while D was living in Wisconsin. The CEO of the X insurance co. is served while in Greenwich CT on a brief trip. PJ over X?

7) Continuing 3. Imagine that there is PJ over X. D is found liable and it is determined that X must indemnify D under the insurance contract. Subsequently X sues D in New York state court for premiums that were past due at the time of D's impleader against X. May the suit proceed?

8) X, employee of D, gets in car accident with P. P sues D in D.N.J. under theory of respondeat superior. D impleads X for indemnification. May X bring an action against P for X’s damages in the car accident? If X does not bring an action against P concerning the car accident, may X bring an action against P for P’s breach of a contract to mow X’s lawn?

Necessary Parties

1) A, B and C, each in separate cars, are in a car accident in which C runs into A and B. A sues C under negligence. Is B a necessary party?

2) The D Corp. is in the process of liquidating its assets and has only $25k left. P brings a D Corp. product that failed and is suing the D Corp. for $20k of damages. X and Y also bought D Corp. products that failed and each suffered $10k in damages. Are X and Y necessary parties?

1) A class action suit is brought by all the people harmed in an airplane accident. Is this a 23(b)(1)(A) class action on the ground that separate actions could find the defendant airline both negligent and not negligent? Is this a 23(b)(1)(B) class action on the ground that if suits are pursued individually, the first would have a precedential effect on subsequent suits?

2) All members who claim or might claim entitlement to unemployment insurance bring a class action against the state director of unemployment insurance. Action is for injunctive relief challenging the practice of terminating unemployment benefits without a hearing. Is this a 23(b)(1)(A) class action? Is this a 23(b)(1)(B) class action?

3) Patent owner sues infringers of his patent as a class to determine the validity of his patent. Can this be brought as a 23(b)(1)(A) class action? Is this a 23(b)(1)(B) class action? If it can be brought as a 23(b)(1)(A) or 23(b)(1)(B) class action, do all the members of the defendant class have to receive notice and the opportunity to opt out?

4) Purchasers of debentures sue the issuer as a class to assert alleged right to convert the debenture into stock. Can this be brought as a 23(b)(1)(A) class action? Is this a 23(b)(1)(B) class action?

5) Smokers of cigarettes sue a tobacco company as a class under negligence for harm as a result of tobacco smoking. Each of 1,000,000 members of the plaintiff class asks for $1,000,000. Is this a 23(b)(1)(A) class action? Is this a 23(b)(1)(B) class action?

6) All African-American applicants refused employment as firefighters on the basis of race sue to establish a remedial program of preferential hiring. Is this a 23(b)(2) class action? Is this a 23(b)(1)(A) class action?

Supplemental Jurisdiction

1) P (NY) sues D1 (NJ) for battery in federal court, asking for $100K. P joins a battery action against D2 (NY) (also a participant in the brawl) under R 20(a). Is the action against D2 part of the same constitutional case or controversy as the action against P1? Should pendent jurisdiction be allowed given the diversity statute?

2) A (Cal.) sues E (Nev.) (B’s employer) in federal court for a battery committed by B (Cal) against A during the course of B’s employment (the two had a fight in the store). E impleads B for indemnification. B then brings a suit against A on the harm done to B in their fight.

3) P (NY) sues D1 (NY) in federal court under federal securities laws. P joins a state common law fraud claim against D2 (NY), an auditor for D1 and was also responsible for the fraud.

4) P (Cal) sues D1 (Cal) under federal securities law and joins a state law fraud claim against D2 (Cal) under state common law fraud.

5) Same as 4, except P also joins a state law action for a battery occurring a few weeks before the fraud against D1.

6) P (Cal) sues D (Cal) under federal securities laws. D joins an action against P for battery, asking for $100k.

7) P (Cal) sues D (Ore) for state law breach of contract, asking for $100K. D joins an action against P for battery, asking for $25k.

8) P (Cal) sues D (Ore) for state law breach of contract asking for 100k. D joins two actions against P. One for battery, asking for $50k another for a different incident of battery, asking for $50K.

9) P (Cal) sues D (Cal) under federal securities laws for $50K. P joins an action against D for battery, asking for $50K.

10) P (NY) sues D (NJ) for battery asking for $100K. D impleads X (NY) a joint tortfeasor for contribution. X joins an action against P for his damages in the brawl. In response P brings an action against X for his damages in the brawl.

11) P (NY) sues D (NJ) for battery asking for $100K. D impleads X (NY) a joint tortfeasor for contribution. P joins an action against X for his damages in the brawl.

12) P (NY) sues D1 (NJ) for state law battery asking $100k and D2 (of NJ) for state law batetry concerning the same brawl asking $25K.

13) P1 (NY) and P2 (NY) sue D (Cal) for battery. Both are suing D for $100k. D brings a counterclaim against P1 for her damages in the brawl, asking for 100K. P1 impleads his insurance company X (NY) and joins a contribution against P2.

1) P1 (NY) sues D (NJ) under state law battery for $100k and joins with P2 (NY) who sues D for $25K concerning the same battery.

2)P(NY) sues D1(NJ) under state law battery for $100K and joins an action against D2(NJ) for $25K concerning the same battery.

3) P1(NY) sues D (NJ) under state law battery for $100k and joins with P2 (NJ) who sues D for $100K concerning the same battery.

4) P1 (NY) sues D (NJ) under state law battery for $100k. D makes a motion to join P2 (NY) as a necessary party. P2s claim against D is for $25K.

5) P1 (NY) sues D (NJ) under state law battery for $100k. P2 (NY) intervenes of right with a claim of only $25K.

6) P (NY) is the named representative of a class action against D (NJ). The action concerns state-law fraud. P’s claim is for $100K. Some members of the plaintiff class are from NJ. Some members of the plaintiff class have claims for only $25K.

Removal and 1441(c)

7) P (Cal) sues D (Cal) in state court in California for violation of federal civil rights laws. P joins to the suit an unrelated state law breach of contract action. May D remove?

8) P (Cal) dues D (Cal) in state court in California for battery. D impleads X on a theory of contribution and joins an unrelated federal civil rights action. May X remove?

Motions for judgments on the pleadings

9) P alleges that D hit him willfully and without provocation. In his answer, D admits P’s allegations but introduces the affirmative defense that P’s claim should have been brought as a compulsory counterclaim in an earlier action that D brought against P in federal court for breach of a contract. May P make a motion for a judgment on the pleadings?

Summary judgment

10) P is suing D for age discrimination. P alleges in his complaint that
    D promoted X rather than P.
    D did so because X was younger than P, not because X had performed better on the job than P.
    D makes a motion for summary judgment.
    In opposition to motion, P introduces an affidavit by P stating that D said to P at a meeting that D “did not want to promote old people.”
    D introduces 10 affidavits from the other 10 people at that meeting stating that D said no such thing.
    If P’s affidavit is the only evidence that he has that D’s motive for not promoting P was age, should D win on his summary judgment motion?

Burden of Production at trial with respect to cause of action
• P must provide evidence in favor of each element of the cause of action
• If burden of production is not satisfied, the case cannot go forward - D wins

Burden of Persuasion at trial with respect to cause of action
• P must prove (usually by a preponderance of the evidence) every element to the jury
• If fact-finder is in equipoise about whether standard of proof is satisfied, then he must find for the D

NOTE: Burdens shift for affirmative defenses

Movant for SJ who is a Plaintiff
• Must satisfy burden of production by providing evidence establishing, with respect to each element of the cause of action, that a reasonable jury could not find in the defendant’s favor
• If burden of production is not satisfied, the defendant does not have to offer any evidence in response to the summary judgment motion – the motion cannot go forward (the case continues to trial)
• If the burden of production is satisfied, then the defendant must offer evidence that shows that there is a genuine issue for trial
• If the judge is in equipoise on whether summary judgment is appropriate, he must find in favor of the defendant (that is, deny summary judgment and let the case go to trial)

Movant for SJ who is a Defendant
• Must satisfy burden of production in one of two ways:
– By providing evidence establishing, with respect to an element of the cause of action, that a reasonable jury could never find in the plaintiff’s favor
– By providing an argument establishing, with respect to an element of the cause of action, that the plaintiff’s evidence is so weak that a reasonable jury could never find in the plaintiff’s favor with respect to that element even if the defendant offered no contrary evidence
• If burden of production is not satisfied, the plaintiff does not have to offer any response
• If the burden of production is satisfied, then,
– the plaintiff must show that there is a genuine issue for trial either by offering new evidence or by showing that his original evidence was sufficient to withstand summary judgment
• If the judge is in equipoise on whether summary judgment is appropriate, he must find in favor of the plaintiff (that is, deny summary judgment and let the case go to trial).

1) P is suing D in negligence for personal injuries in connection with a car accident. D moves for summary judgment, offering as evidence an affidavit from P’s doctor stating that P is not harmed. Has D met his burden of production?

2) P is suing D in negligence for personal injuries in connection with a car accident. D moves for summary judgment, offering the argument that P has presented no evidence that he has been harmed. Has D met his burden of production?

Discovery

1) During discovery it has become clear that D was looking the other way while driving his car. P’s lawyer thinks that D would have admitted this allegation if it had been put in P’s complaint. What does P’s lawyer do?

2) X was a witness to the car accident that P is suing D for. May P’s lawyer use R. 36 to request an admission from X that D was looking the other way during the accident? Can an insurer impleaded request an admission from the P, or a P from a co-P?

3) The P Corp. is suing the D Corp. for violations of antitrust law. Counsel for the P Corp. wants any documents that the X Corp. might have concerning agreements with the D Corp. to fix the price of widgets. What should the counsel for the P Corp. do? How would counsel for the P Corp. get the same type of documents from the D Corp.?

4) P is suing the D Corp. for securities fraud for misrepresenting its loan loss reserves as adequate. P’s lawyer wants to find out who at the D Corp. knows how the loan loss reserves were determined. What does P’s lawyer do?

5) X was a witness to the car accident that P is suing D for. P’s lawyer wants X to answer questions about what he saw, X refuses. Can you serve an interrogatory upon him?

6) During a deposition, opposing counsel asks your client for irrelevant material. What do you do? What if she asked for relevant hearsay material that you think will be inadmissible at trial? What if she asked for confidential communications between you and your client?

Attorney-Client Privilege

Privilege for confidential communications between attorney and client for the purpose of obtaining or providing legal representation.

1) Your client tells you that he was drunk when he drove into the plaintiff. Your client receives an interrogatory asking whether he said to you that he was drunk when driving. Does your client have to answer the interrogatory?

2) Your client tells you that he was drunk when he drove into the plaintiff. Your client receives an interrogatory asking whether he was drunk when driving. Does your client have to answer the interrogatory?

3) Your client tells you that he was drunk when he drove into the plaintiff. Subsequently he credibly tells you that when he said he was drunk, he was feeling guilty because he had had a beer and that he does not think he was impaired at all. Your client receives an interrogatory asking whether he said to you that he was drunk when driving. Does your client have to answer the interrogatory?

Work product

1) An interrogatory asks, “Whom have you interviewed in connection with this case and did you make any reports, memos, etc.” May you claim that the information is work-product under 26(b)(3) and/or Hickman?

2) A witness you interviewed said that your client was drunk while driving. You write it up in a witness statement. The plaintiff requests the statement in a document request. May you claim that it is work product under 26(b)(3) and/or Hickman? If an interrogatory asks your client whether he was drunk, may he refuse to answer on the basis of 26(b)(3) and/or Hickman?

3) The plaintiff serves you with a document request asking for witness statements drafted by a private investigator retained by your client prior to hiring you, when he was worried that he might be sued. May you refuse to turn it over under 26(b)(3) and/or Hickman? Would it matter if the plaintiff served you with an interrogatory asking for the substance of the witness statements?

4) The plaintiff serves you with a document request asking for an unsolicited letter you received from a witness. May you refuse to turn it over under 26(b)(3) and/or Hickman?

5) You are being sued for negligence in connection with a car accident. The plaintiff serves you with a document request asking for
–    Witness statements taken by your lawyer a year ago – only a few hours after the accident
–    Your lawyer’s notes on the interviews with the witnesses
Does the Work Product Privilege apply?

6) An insurance claims adjuster for D measured the tire skid marks on the road after the accident between P and D. The police report also had a measurement of the marks, but P thinks they are wrong. D claims that the police report is right. P asks in discovery for the insurance claims adjuster’s report from D. Is the material work product privileged? Should the privilege be overcome? Assume that D thinks the insurance claims adjuster's measurements are right. Could P get the adjuster's measurements simply by asking D the length of the skid marks?

7) A witness, X, who is friendly to the D was interviewed by P’s attorney and a statement was drawn up. Is there any way that D can get X’s statement despite the fact that it is work-product?

8) You give an expert you will call as a witness at trial a piece of work product to use in determining his opinion. Is the material discoverable without a showing of substantial need? Would it make a difference if the expert was not testifying?

1) P is going to testify about the extent of his injuries due to D’s negligence. May P request in discovery any surveillance tapes that D may have made of P after the accident?

Sanctions

2) D . . .
–    did not turn over disclosure materials
–    made frivolous discovery requests
–    and illegitimately refused to turn over materials that were within the scope of your discovery requests
What do you do?

Claim Preclusion

1) P sues D for fraud. P loses. The next day P discovers that D had fabricated evidence. P brings a new suit against D concerning the fraud. What result?

2) P sues D in federal court for battery. A few days later D sues P for his own damages in the brawl.

3) P sues D in federal court for his physical damages as a result of a car accident. D defaults and P gets a default judgment. Subsequently P sues D for damages to his car as a result of that accident.

4) P sues D for battery in federal court in New York. D gets the action dismissed for lack of subject matter jurisdiction. P then sues D for the same battery in state court in New York. Claim precluded?

5) P sues D for nuisance. P gets a judgment with an injunction stopping the nuisance. D then brings suit against P to enjoin enforcement of the earlier judgment on the ground of a defense not mentioned in the earlier suit.

6) P sues D for nuisance. P gets a judgment of $100,000. D pays the judgment. Subsequently D sues P for restitution of the amount paid on the ground that D is not liable to P. In his suit D introduces a defense not mentioned in the first case.

7) P brings a quiet title action. It is determined that P owns the property. D, who failed to appear in the earlier action, brings a quiet title action concerning the same property. What result?

8) P sues D for breaching a contract requiring D to give P coal every winter. In the suit D challenges the validity of the contract. The court determines the contract to be valid. P wins damages from D. The next winter, D breaches again. P once again sues D for breach. In his answer, D offers the defense of claim preclusion and the defense that the contract is invalid.

Claim preclusion/Claim splitting

1) P and D have 2-year oral lease under which P rents D an apartment. D is in the apartment for a while and does not pay. P sues in New York state court under the lease. The court holds that the lease is invalid because of the statute of frauds. P sues again to get the fair value of the apartment during the time that D lived in it. Barred by claim preclusion (assume the cases occurred in 1954)?

2) P’s landlord sets up a rendering plan next to P’s apartment building. The smell is so bad that P moves out of his apartment and sues for a declaratory judgment in New York state court that he does not have to pay the rent because of constructive eviction. P loses. P subsequently brings a simple nuisance action against D. Barred by claim preclusion (assume that the cases occurred in 1982)?

3) P sues D in state court under state antitrust law. P loses. Subsequently P brings a federal antitrust action in federal court concerning the same actions by D. Is P’s action claim precluded? What if the first action had been brought in federal court?

4) P brings two suits against D in the S.D.N.Y., one for the the loss of his right arm in a car accident and one for the loss of his left arm. D does not aks for a dismissal of one of the actions on claim splitting grounds. When the suit for the loss of his right arm comes to a judgment in P’s favor, D moves for summary judgment on the grounds of claim preclusion. Should claim preclusion be allowed?

Claim preclusion/Claim splitting

1) P sues D (a municipality) for employment discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964. Judgment for P with inj relief, but no compensatory damages, since it was held they are not available under Title VII. Subsequently the Supreme Court decides that compensatory damages are available against municipalities under 42 USC 1983. P sues D under 1983 for compensatory damages for the past employment discrimination. Claim precluded?

2) African-American students as a class bring suit against school board for racial discrimination. The court holds that segregated schools is compatible with the 14th Amendment and enters judgment for the defendant. Afterward in Brown v Board of Education, the United States Supreme Court in an action between different parties strikes down as unconstitutional segregated education. The plaintiff class brings a new action. Claim precluded?

Restatement (Second) of Judgments § 26. Exceptions To The General Rule Concerning Splitting

(1) When any of the following circumstances exists, the general rule of section 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant:
...

(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.

3) Wife sues husband for maintenance on the basis of desertion. Judgment for wife. Subsequently wife sues for divorce on the basis of same desertion. Claim precluded?

4) A mother is awarded custody of a minor child. The father, relying upon subsequently discovered evidence brings suit to determine that the wife is in fact unfit for have custody.

5) 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?

6) P sues D Railroad alleging that the conductor was negligent in starting the car while P was disembarking and that as a result P broke his arm. After judgment for P, P brings a new action against D alleging that after disembarking from the car he fell into a trench negligently left by D beside the road and broke his leg.

Restatement (Second) of Judgments

§ 24(2) What factual grouping constitutes a "transaction", and what groupings constitute a "series", are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.

7) P sues D for breach of a contract, alleging that the car P bought did not meet specifications. After judgment for D, P sues D, for breach of contract, alleging late delivery of car as the breach.

Issue Preclusion

1) P sues D for breach of a contract to buy 10 shares of the C Corp. every month for 2 years. D introduces the defense of fraud, on the ground that at the time they entered into the contract P lied to D about the C Corp.’s oil assets. D loses on that issue; judgment for P. Subsequently D breaches the contract again. P sues D and D introduces two defenses: statute of frauds (the contract was not in writing); fraud (at the time that they entered into the contract, P lied to D about the C Corp.’s coal assets). Is D issue precluded?

1a) P buys bonds from D. P then sues D to recover interest. D admitted in his answer that the bonds were valid but argued that P had released D of his obligation to pay interest. Judgment for P. P then buys more of D's bonds. P sues again to recover interest. D argues that the bonds are invalid. Is D issue precluded?

2) P sues D for negligence. D introduces the affirmative defense of contributory negligence in his answer. At trial, no evidence for or against contributory negligence is offered by either side and the jury finds for P. Was P's negligence actually litigated and decided?

1) P sues D for interest on note. D alleges fraud in execution of note and release of an obligation to pay interest. P wins. P then sues for principal. Is the previous adjudication conclusive on question of fraud in execution of the note?

2) Same as 1, but D had won the previous case - both issues were decided for D. Is P issue precluded to relitigate fraud in the execution of the note? What if, instead, P is suing in the second suit for new interest due on the note?

3) P and D contract for D to deliver coal to P monthly. D breaches. P sues D in California state court. D argues that the contract is invalid. D loses on that issue. Judgment is entered for P. D breaches again. P sues D in Nevada state court. D argues that the contract is invalid, P fails to argue issue preclusion, and D wins. P does not appeal. D breaches again. P sues D in California state court. D argues that the contract is invalid. P argues issue preclusion. Which previous determination has issue preclusive effect?

What if P had asserted issue preclusion in the Nevada state court case, but the court rejected and P did not appeal?

What if P had appealed the denial of issue preclusion in Nevada state court, but the Nevada Supreme Court affirmed the decision and the US Supreme Court refused to grant cert?

4) D is acquitted of resisting arrest. The gov’t subsequently sues D civilly for damages to the arresting officer. An essential element of the government's civil case is that D resisted arrest. Is the gov't issue precluded concerning D having resisted arrest?

4a) In Illinois, the plaintiff suing for negligence has burden of production and persuasion concerning his own lack of contributory negligence. P sues D for negligence and loses on ground that he could not satisfy these burdens concerning his own lack of negligence. Subsequently X (another person in the accident) sues P for negligence. Can X issue preclude P from relitigating his negligence in the accident?

5) P sues D to recover for property damage in small claims court with a jurisdictional maximum of $500 and which operates informally without pleadings, counsel, or rules of evidence. D is found negligent. In a subsequent action by D against P for $10,000 for personal injuries arising out of the same accident, is D issue precluded concerning his own negligence?

6) Business A sues gov’t. It determined that the widgets it imports do not have to have an import duty. Subsequently the government sues business B, where it is determined that the same type of widgets do have an import duty. The gov't then sues A to make it pay an import duty going forward. Is the government issue precluded?

7) Sunnen assigned licensing revenues to wife. Litigation settled that the revenues were taxable at wife’s (lower) rate. The law on matter changed in an unrelated case. Sunnen makes new assignments of same sort to wife for next year. There is litigation concerning the rate at which they are taxable. Held that issue preclusion does not apply. Why? What is the difference between this and Moser?

Privity

1) D sets up a rendering plant near an apartment building. P1, the owner of the building and landlord, sues D and loses. It is determined not to be a nuisance. Is P2, a tenant, issue precluded if P2 sues D for nuisance?

2) P sues Landlord concerning ownership of property. Judgment for P - the property is determined to be P's. P tries to evict Tenant from the property. Tenant challenges the eviction on the ground that the property is Landlord's. Is Tenant issue precluded?

3) African-American applicants for positions at a fire department sue the department as a class to create a system of preferential treatment in hiring as a remedy for acts of past discrimination. Judgment for the class. Subsequently white applicants sue the department as a class to challenge the preferential treatment system as a violation of the Equal Protection Clause. Should the white applicants be issue precluded?

4) P sues D, alleging that D's adding a second floor to his house (thereby cutting off light to P's backyard) is a nuisance. P loses - it is held not be a nuisance. P sells his house to X. X now sues D, alleging that D's adding a second floor to his house (thereby cutting off light to X's backyard) is a nuisance. Is X issue precluded?

5) X is the sole shareholder and the CEO of the P Corp. The P Corp. sues the D Corp. for antitrust violations. The P Corp.'s litigation is controlled by X. The P Corp. loses. Subsequently X sues the D Corp. for the same antitrust violations. Is X issue precluded?

6) Wife, as guardian of now disabled Husband, sues D for damages in an accident in which Wife, Husband, and D were involved. Wife loses. It is determined that D was not negligent. Subsequently Wife sues D in her individual capacity for her own damages. Is Wife issue precluded?

Nonmutual issue preclusion

1) Assume that mutuality is still required for issue preclusion. P sues Employee for battery as a result of a scuffle when Employee tried to stop P from shoplifting. Employee wins. P then sues the Employer on a theory of respondeat superior. What happens if Employer cannot take advantage of nonmutual issue preclusion and so P could win against Employer?

Erie

1) The last Pennsylvania Supreme Court opinion on point is an 80-year old case. You think they would decide otherwise now. The change in the law would be to your benefit. Your case is a diversity case. Where do you sue, in a Pennsylvania state trial court or in a federal district court?

2) You are federal district judge in the E.D. Va. The only cases on point are a 20-year-old decision by the 4th Circuit and conflicting 5-year-old decision by a Va trial court. Is the 4th Circuit decision binding authority for you?

3) Assume that under New York law, a New York state court ascertaining the law of state A does not use the prediction model of Bernhardt, It instead acts like a lower court of state A and simply follows old decisions by the Supreme Court of A, even if it is likely that this Supreme Court of A would overrule the old precedent.

P (from Michigan) sues D (from New York) in federal court in New York concerning an accident that P and D got into in Michigan. Under New York choice of law rules, Michigan law would apply. There is an old case from the Michigan Supreme Court adopting a contributory negligence rather than a comparative fault approach. But it is very likely that the Michigan SCt would adopt comparative fault now. What does the federal court in New York do, follow the old case or predict what the Michigan Supreme Court would do now?

1) A federal court in Illinois sitting in diversity is entertaining an Illinois negligence action. Under Illinois law, the plaintiff has the burden of proving a lack of contributory negligence. Does that burden of proof apply in federal court?

2) P (Va.) is a guest in a car driven by D (Va.). The two drive to Pa., where they get in accident with X (Va.). P sues D for negligence. Under the law of Pennsylvania, a guest may not sue his host for negligence. Under the law of Virginia, a guest may sue his host for negligence. Under Pennsylvania's choice of law rules, the law of the state with the most significant relationship to the parties determines the ability of a guest to sue his host in tort. Under Virginia's choice of law rules, the law of the place of the harm determines the ability of a guest to sue his host in tort.

Could P's suit proceed if it was brought in state court in Pennsylvania?

Could it proceed if it was brought in state court in Virginia?

Could it proceed if it was brought in a federal court in Virginia?

3) According to Kansas law, a statute of limitations tolls upon service. According to the federal rule (suggested by Fed R Civ P 3) it is tolled upon filing. Which rule should be used to determine whether a statute of limitations was met or not in a diversity case brought in federal court in Kansas?

4) A Mississippi statute requires a corporation doing business within the state to designate an agent for the service of process before bringing suit. There is no such requirement under federal law. P (a Tennessee corporation doing business in Mississippi) is suing D (a Mississippi citizen) in federal court in Mississippi. P has designated no agent for service of process in Mississippi. D moves for summary judgment on this ground. What result?

5) A New Jersey statute requires small shareholders bringing derivative actions to post a bond. Federal courts have no such requirement. P, a small shareholder, brings a derivative action against D in federal court in New Jersey. P has not posted a bond. D moves to dismiss. What result?

6) Congress passes a uniform statute of limitations applicable for all actions in federal court. Can the statute be applied in diversity cases?

7) Assume instead that the Supreme Court created (and Congress approved through inaction) Fed. R. Civ. P. 4B, which specified statutes of limitations for actions in federal court. Could these statute of limitations be applied in diversity cases? Could they be applied in federal question cases?