Deck 2 Flashcards
1
Q
4(k)(1)(a)
A
Federal courts have personal jurisdiction to the extent that the corresponding state court would have.
Look to the state court and see what the state court can do. This includes the impact of long-arm statutes and 14A.
2
Q
4(k)(1)(a) actual text
A
Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant: who is subject to the jurisdiction of a court of general jurisdiction in the state where the district is located
3
Q
4(k)(1)(c)
A
There is personal jurisdiciton when authorized by congressional statute.
4
Q
What do you need to pass 5th due process for sufficient minimal contact (JOP)?
A
Contact with the state as a whole.
5
Q
Is tag jurisdiction constitutional?
A
Yes.
6
Q
Steps for JOP?
A
1) See if within long-arm. 2) Check constitutionality (minimum contacts test).
7
Q
Shaftner
A
1) Minimum contact test applies across the board to all exercises of jurisdiction (in rem and in personam). 2) Quasi in rem is unconstitutional in its traditional form.
8
Q
Why is quasi in rem unconstitutional
A
There is a contact, tie, or relation but the claim doesn’t arise out of anything relating to the contact. We can only get constitutional jurisdiction in this context if it the contact is continuous, systemic, and substantial. For example, owning one piece of stock in a corporation in that state does not rise to this level.
9
Q
What are property rights?
A
Property rights aren’t rights in property. They are rights that have to do with the relationship between the property and people. Not between property and the owner, but instead between the owner and others in regards to the use of the propery.
10
Q
What is JOP about (Worldwide Volskwagon)
A
Court says JOP not just about fairness. Also about state sovereignty.
11
Q
Why JOP unconstitutional in Worldwide VW?
A
Seaway (NY retail dealer) and Worldwide (NY regional distributor) did not purposely avail themselves such that they could reasonably anticipate having to defend in OK. All of there contacts in OK are not a result of their purpsoeful action.
12
Q
Interstate federalism places limits on JOP even if
A
D suffers minimal or no convenience, even if state has strong interest in applying law, even if most convenient place for trial.
13
Q
Is foreseeablility enough for JOP?
A
NO. For example, in WVW forseeable that car would be driven there, that accident would occur there, and that they would be sued there. But this isn’t enough. It needs to be forseeable that Ds conduct and connection with state are such that they will be hailed into court there. They have to reasonbly foresee that they will have to defend in the forum state. The have to forsee that there will be JOP there.
Legal rules tell them what to anticiapte.
14
Q
What is the central idea for JOP?
A
It’s more than just notice. It is notice that D is subject to suit there and therefore can act to alleviate risk of litigation by getting insurance, passing on the cost, or if to risky, sever interaction with the state.
D needs to have measure of control over wehther or not they an be sued in the forum state.
Control is central idea here. If you want to avoid the laws of a state you should be able to do so. Purposeful availabment is a separeate, but also central idea.
together: Purposeful availement and reasonble anticipation.
15
Q
Seaway Connection with OK and purposeful availment?
A
Not result of purposeful availment. They are selling cars in North Eat. Connection is resutl of Robinson’s driving there. They had no idea where the robinsons were driving.
16
Q
What is necessary to meet PA/RA?
A
There needs to be a constitutional contact, tie, or relationship.
17
Q
Hypo: Robinson’s live in OK. Order car from Seaway to be delivered to OK. Seaway delivers it there. JOP in OK?
A
Yes.
18
Q
Gray v American Radiator. Stream of commerce JOP case. Titan to AR to Gray. JOP?
A
Yes. Titan might have more control to keep product from being sold in forum state. Titan has more notice that good will go into forum state. Stream of commerce vs Delta. This makes it seem more purposeful.
19
Q
Calder (JOP)
A
Purpose without control. Still JOP. The most important thing of PA/RA is PA.
Satisfies PA/RA because their actions were expressly aimed at someone in CA and they knew it would be sent to CA. It doesn’t matter that they didn’t have control. They have purpose. The story is about CA. It is aimed at CA. CA is the focal point.
20
Q
Hypo: Seaway in El Paso, people from NM come to buy car, go back to NM, accident in NM. JOP?
A
NO JOP if we go strictly by WVW. Rule and intuitions are at odds here.
21
Q
What if Audi objected instead of constenting to JOP in original case?
A
Yes, JOP under general jurisdiciton. Already had a lot activity in the state.
22
Q
X (PA) has trustee in DE. X moves to FL. Trustee continues to communicate with X in FL. X dies in FL. X’s children fight over trust. Under FL law, the trustee has to be a part of the case. JOP over DE trustee in FL?
A
NO. X hauled trustee into relationship in FL. Trustee didn’t engage FL. This is a case of control without purpose.
23
Q
Purpose without control. JOP?
A
Yes
24
Q
Control without purpose. JOP?
A
No.
25
Two parts of SJOP analysis
1) minimum contacts. 2) reasonablness.
26
Why no JOP in Asahi?
JOP would be unreasonable. Big burden to make Japanese company litigate in a distant and foreign legal system. CA has minimal state interst because it is between foreigners. Cheng Shin also doesn't have a big interst in CA. Taiwan v Japan also brings in foreign relations. Don't want state courts dealing with that when no other strong reason to be in CA.
But, 4-4 split on PA/RA.
Brennan: Putting something into stream of commerce is enough for PA/RA.
O'Connor: Wants a specific intent--just going through stream of commerce not enough (need to design product for state specifically, market it there, have employees there, etc).
27
JOP in McIntyre v NiCastro?
????
28
JOP in Goodyear Dunlop Tires Operation SA v Brown?
No.
Specific jurisdiction? NO. Tire not sold in NC so claim doesn't arise out of or relate to any contacts that the 3 Ds might have with NC. Just because tires by those 3 sometimes end up in NC due to circumstances (not sold by them there isn't enough. All that matters is that the specific tire that exploded wasn't sold in NC.
General JOP? Court says D has to be home in the forum state to have general jurisdiction.
29
When is a corportation at home?
At home where they are incorporated and where they have principal place of business.
30
Ford Motor JOP?
General jurisdiction? Not in MT because Ford only at home in DE and MI.
Specific jurisdiction? Ford does have contact with MT. They sell cars, advertising, provides servicing, sells the exact same type of car in MT.
But Ford says contact didn't arise out of or relate to the specific car.
Ford loses. There is JOP. Why?
Court focuses on relates to side. Says claim related to Ford's purposely availed contact with MT.
It is fair, just and reasonable here. Ford can't be surprised that they would have to defend in MT because they already have so much contact with the state. WA wouldn't mind if MT took the case because everything happened in MT.
31
Bristol-Meyers Squib JOP? Mass action, all brought in CA state court.
JOP with respect to CA residents, but not non CA residents.
Some Ps had no ties to CA, but in Ford the P did have ties to MT.
32
Ford concurrence
Suggests that Ford Motor is the old presence from Pennoyer. MT has jurisdiction because of Ford's big involvement in the state. "Relates to" makes it very close to general jurisdiction.
33
Rule 4, what are the four main ways that D can be served (given complaint + summons)?
1) Personal service (ex. handing it to them, or sufficiently high level employee of the Corp).
2) Substitute service (ex. Close relation, for Corp this would be serving an agent that has been appointed by the Corp to receive services), 3) waiver (you get 60 ays to file an answer if you waive after the request was sent to you while under normal circustamces you have 21 days. If you refuse to sign the waiver in bad-faith then you are liable for the costs of P in serving in accordance with more traditional form plus all fees incurred in trying to collect those costs).
4) Any additional way that the forum state allows service (even if in federal court in that state).
34
12(b)(4) and (5) impact?
They won't get you out of the lawsuit. Court will just tell P to do it right.
35
Venue vs JOP
Both horizontal. But venue 1) Not a constitutional requirement. It is all statutory. 2) Congress' way of allocating judicial business in a roughly proportional way across the disctrict courts. Aimed at efficiency plus convenience for Ds. 3) IN JOP we look at the state, but here we look at the judicial district.
36
1391(b)(2) transaction venue
There is venue in any judicial district where a substantial amount of activity that gives rise to the claim occurred.
37
Why venue in Bates?
The harm happened in NY where the letter was opened. Court says more than one place can have a substnatial amount of acivities or events.
38
Page 87
Practice problems
39
1391(b)(1) residential venue
There is venue if all Ds are residents of the forum state and 1+ D is a resident of the venue district.
40
Resident definition for purposes of venue?
Defined in 1391(c). For a natural person it is the jduicial district in which they are domiciled.
1391(c)(2) applies to states with only one district.
1391(d) also adds that a corporation is a resident of any judicial district that would have JOP if it were treated as a seperate state (does this apply to people too?)
41
Why tansfer instead of dismissal due to lack of JOP in Piper Aircraft v Reyno?
Ordinarily we dismiss isntead of transfering to a different court. Transfers here likely in order to keep the suits together because Piper transfered under § 1404(a). No way to consolidate the suits if P refiles somewhere other than M.D. PA.
42
§ 1404(a) transfer
Allows transfer for convenience of parties and interests of justice. Used in cases where JOP is available where it is filed but there is a different forum that is a lot better. Strong presumption in favor of P's choice of forum, especially if P brings the suit close to home and is a US citizen. Can only be transferred to another forum where it already could have been brought. Can only be trasnfereed from fed court to fed court.
43
Does motion to dismiss on the ground of forum non conveniens suspend obligation to file an answer until it is decided/postponed?
No.
44
Why is Piper Aircraft v Reyno dismissed on grounds of forum non conveniens
There is an alternative forum that is a lot better located somewhere in Scottland. Your dismissing, not transferring here, but dong so with the assumption that it will be refiled in the other court.
Forum being worse for P isn't conclusive. It is just one factor, and not even one with substantial weight when you have foreigners suing. FNC dismissals are only way to stop foreign Ps from flooding US courts (apply private and public factors from Goldberg?).
No FNC dismissal if you can tranfer to the court (not applicable here).
Very routine for there to be conditions on FNC dismissal. In this case, conditioned on Ds waiving statute of limitations and consenting to JOP in Scotland.
45
1401 (venue on removal)
On removal, the forum you remove to automotically has venue.
46
What law gets applied when:
Fed claim in fed court?
Fed claim in state court?
State claim in state court?
State claim in fed court?
F in F = F substantive
F in S = F substantive
S in S = S substantive
S in F = Erie doctrine (S substantive)
47
12(b)(1)
Lack of subject matter jurisdiction
48
12(b)(2)
Lack of personal jurisdiciton
49
12(b)(3)
Improver venue
50
12(b)(4)
insufficient process. Says that the wrong forms have been delivered.
51
12(b)(5)
Insufficient service of process. Focuses on how the service has been conducted.
52
12(b)(6)
Failure to state a claim upon which relief can be granted
53
12(b)(7)
failure to join a party under Rule 19.
54
1652, what Erie is interpreting
The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.
55
How does Swift v Tyson (1842) interpret § 1652
Court interprets this to apply only to state statutes, not state common law.
Effect is to create parallel bodies of law for the same common law claims based on whether it was filed in state or federal court.
56
Erie Railroad Co v Tompkins (1938) interpretation of § 1652. Why?
A federal court adjudicating a state claim under diversity jurisdiction must apply state substantive law, written or unwritten.
Why?
1) Says wrong interpretation in Swift. Congress intended to include common law.
2) Swift v Tyson regime introduced grave discrimination that makes it impossible to give equal protection of the laws. Not a constitution thing. It means that it creates inequality. If non-citizen sues citizen, non-citizen can choose whether to be in state or federal court based on what is most beneficial to it, but a citizen can't do the same thing. The citizen is locked into state court in their own state. If a citizen sues a citizen they have to be in state court. Non-citizens get a better deal under Swift v Tyson.
3) Leads to bad forum shopping. Erie trying to protect vertical federalism values by protecting state substantive law. This argument only makes sense if vertical fedleralsim is more important than interstate federalism (most say it is).
4) Swift v Tyson unconstitutional. Congress has no power to declare substantive law in states, and because congress has no such power, courts don't either. Commerce clause not revelent because rule is applicable in all states, even where there is no interstate commerce.
57
Black & White Taxicab v Brown & Yellow taxicab.
By wants to be excluse taxi service for train station. BY enters exlusive contract with train station. BW also wants access. BY can't do anything because contract void under state law. So BY reincorporates in a different state, then brings case in fed court with diversity jurisdiction. Fed rules uphold it. Erie gets rid of this sort of move.
58
Where does Congress get power to create lower courts?
Tribunal clause. Article 1, Section 8, Clause 9. Plus N+P.
59
Which states law applies under Erie?
Go based on forum state's choice of law doctrine. Apply the law that the forum state would apply.
60
Hanna v Plumer. Under state law you have to serve executive of an estate personally within a year of them posting the bond. Is th is procedural or substantive?
SC rule is about notice. But also has substnative purpose in speeding up probate and making sure executor doesn't give out money the estate doesn't have, in which case they would be personally liable.
State rule is SoL with a tolling rule of in-hand service. if this is the cae, then the FEd court has to apply it (see York, requiring SoL and another case saying tolling rule has to be followed)
But SC says this is procedural. It is just about notice. We have a federal rule that is just as good as that.
61
How does court save FRCP under Erie?
Court says that FRCP is based on Rules enabling act while Erie based on Rules of Decision Act.
62
Hypo Constitutionally required to give jury trial in certain circumstances in fed court, not required in state court. If we're in fed court on state claim do we give to jury or judge?
We give it to the jury. The state rule isn't unconstitutional, but in fed court the constitution says we have to give it to the jury in this case.
63
Hypo: Congress passes statute prescribing a rule on an issue. A state has a conflicting statutory rule. What do we do?
Judge applies the federal rule because of the supremacy clause (unless fed statute unconstitutional).
64
What is the FRCP
Not a statute. More like admin law. People thought legislation a bad way to pass procedural law. Turned over to courts.
Rules enabling act starts by saying congress could do all of this by statute. Then delegates to SC this portion of congress's power to make precdural rules. Sc to busy so they create committee. This committee created the FRCP. They send to SC. SC then sends to Congress who has veto power.
Congress has six months to veto. If not vetoed it goes into effect. Never affirmatievely approved by Congress so not a statute.
65
Two sevice rules what do we apply (Hana)?
Under York outcome determination test, we apply the state rule if applying the federal rule would significantly affect the outcome of the case.
But this would lead to state rule overruling the FRCP.
Court finds way to avoid York Rule.
FRCP governed by Rules Enabling Act. York is based on the Rules of Decisions ACt. So valid FRCPs are applied.
66
How do we know if FRCP is valid?
Two prongs. 1) Constitutional, 2) consistent with REA proviso.
67
Hypo: FRCP creates a duty of care for someone in all cases. Valid?
No. FRCP is only constitutional if Congress has the power to create that rule (see tribunal clause and N+P). Congress can't delegate a power it doesn't have and it doesn't have a power to crate a duty of care in all cases.
To determine if Congress can delegate we ask if it is rationally capable of being categorized as a procedural rule. If yes, then Congress has the power to adopt a statute that provides the rule.
68
Hypo: FRCP statute of limits applies to all state claims brought in fed court. Valid?
No. Constitutional but not valid. Why not, REA proviso: Congress gave power to SC, but it also put statutory limits on what it delegated. In particular in put a limit on the power it granted that has to do with substantive rights. NO FRCP can abridge, enlarge, or modify any substantive right.
SoL is to substantive. If state rule has sufficiently signficant substantive affects, then by applying a different rule we are abridging, enlarging, or modifying the substantive right.
69
rule 4(d)(1): Allowing substitute service. VAlid?
1) Rationally capable of being procedural, so constitutional. 2) If it is just a matter of service rule then it doesn't realy chagne anything substantively, and that is what this is, so it passes the REA proviso.
70
If FRCP is valid what happens?
It is applied, even if it conflicts with a state rule.
71
Why has SC never struck down FRCP as violating REA proviso?
SC has already approved it when it went through the original process. they were paying attention to whether or not it passes the proviso the first time through. This means there is an extremely strong presumption of validity.
72
What do we under Erie/Hana if no FRCP rule?
Then we are dealing with federal common law. We are in the world of Erie. Take reasons from Erie, and then apply them.
73
Forum shopping test
If a federal judge doesn’t apply the state law, would it cause plaintiffs to shop for federal court over state court. You ask this before the rule has been violated, not after it has been done. If P can comply with both rules, will P’s choose federal court in order to serve through substitute service. This is an ex ante analysis. Court says no. It wouldn’t make sense to choose federal court just so that they can serve the spouse. We look at burden of complying with each, and the difference isn’t a big deal.
74
Inequitable administration of laws test
No idea what this is. But it isn’t a big deal here.
Neither concern is implicated here so the federal court has power to adopt a common law substitute service rule.
75
Hana test
Goes back to Erie's goal of forum shopping (says lets create a forum shopping test) and grave discrimination (just ask if there would be grave discrimination if fed court applied it's own rule. It doesn't talk about values of federalism.
76
Fed statute vs state rule. Which rule applies?
When it is a congressional statute, all we do is ask whether or not it is constitutional aka whether or not it is arguably procedural. If it is, then we apply fed statute.
77
FRCP vs State rule which rule applies?
Step 1: Constitutional (could congress have passed via statute aka is it agruably procedural).
Step 2: REA proviso (it must not abridge, enlarge, or modify any substatnive right.
78
Is FRCP 3 a tolling rule?
No (Walker v Armco Steel). FRCP 3 says civil action is commnced by filing a complaint with the court. Because it is not a tolling rule there is no contradiction. State rule followed????
FRCP rule 3 governs dates. It's not a tolling rule. If later we say you have to do something within 30 days of commencing the action, then you look to FRCP to see start of 30 days.
79
Federal common law vs state rule.
World of Hana. 1) Forum shopping test. 2) equitable administration of law test.
IAL is basically doing federalism work even though it is supposed to t discrimination work.
80
Rule 20 tests
1) Transaction requirement. 2) Common question requirement.
If both met then P may join them via permissive joinder.
81
Rule 18
Party can join as many cliams they want. Theory is to make it as easy to bring in whith a wide door. Then judge can carve it up into the most efficient unit. The judge is best at carving it up.
82
Hypo:
1) Parker sues DEI for negligence (chainsaw). 2) Parker sues DEI for negligence (toaster). Both caused by the same computer glitch.
In case 1 jury finds that DEI used reasonable care in regards to its computer system.
Parker than want to sue DEI for the toaster, based on the same computer system.
What effects does case 1 have on case 2.
Claim preclusion deals with different theories regarding the same incident. This isn’t relevant here. Not claim precluded. What about issue preclusion? There is an issue in common, whether or not reasonable care was used in maintaining the computer. Is Parker bound in case 2 by the decision in case 1 on this question. If issue is decided, and the issue is identical, then it is issue precluded. More facts could allow Parker to push back on them being identical (ex. Reasonable care is time sensitive).
83
Hypo 2
Chainsaw 1 and chainsaw 2 made one after the other. DEI wins in case 1 for chainsaw (used reasonable care). Case 2 is brought by Prentiss, not Parker (who brought case 1). Are they claim precluded? Issue preclusion?
Are they claim precluded? No. Issue preclusion? No. Prentiss gets to have her own day in court. There are exceptions though. 1) If Prentiss had control over Parker’s suit (Prentiss is one making decisions), then Prentiss has had a de facto day in court. 2) If Prentiss is represented by Parker (ex. Fiduciary, consent).
84
Hypo 3
2 unrelated companies create a gas. Gas flows over to P’s property. P wants to bring a nuisance claim against both. Can P join them?
They share a common question of law. But does it arise out of the same transaction? The gas does mix together in the air causing a causation problem. Looks like it should be one case if they are jointly and severally liable.
D1 and D2 can bring motion to sever if they are misjoined. You can’t dismiss a lawsuit because it has been misjoined, you just break it up. They can’t be brought to together because they don’t meet the transaction question. But they can be brought back together-ish with rule 42 which only requires a common question. They are still separate cases, but are tried together.
85
Rule 19 compusory joinder steps
) Use 19(a) to determine whether the absentee should be joined if feasible. 2) If you decide they should be joined if feasible, you then ask if they can be joined to the lawsuit (potential obstacles: losing SMJ in federal court, or can’t get JOP over absentee). 3) If can’t be joined because of an obstacle, we go to 19(b) and we take a look and ask if the harms in the obstacles are serious enough to cause us to dismiss the lawsuit, among other factors.
86
Why did La Roca and Hospital not need to be added in Temple v Synthes?
They are only joint tortfeasors with Synthes and nothing more. Thy are jointly and severally liable. But if this is the only reason to join them, then that isn't neough.
87
Empty chair defense
There is an empty chair over there. That is the person who is really to blame, not us.
88
Policy reasons for not adding La Roca and the hospital
Would make permissive joinder into compulsory joinder. No ability to do it permissiviely if they have to join. Would undermine autonomy. Also, if you have mass tory with thousands of people with claims against a company, these would all have to be joined as parties. Slippery slope. If you do it here then you have to do it in the mass tort claims. It would make it impossible to sue in federal court because one of those thousands would likely have the same jurisdiction as D, destroying diversity.
89
When is 19(a)(1)(a) most likely to work?
When you are trying to get an injunction. Ex. Suing rodeo because university stadium not accessible. You also need the university included because the rodeo can't change the stadium they are using. Problem: You can't join university because they have state soveriegnty.
90
Who is added via Rule 19
A person who is subject to service of process and whose joinder will not deprvie the court of subject matter jurisdiction must be joineda s a party if:
(a) in that person's absence, the court can't accord complete relief among existing parties; or
(b) that person claims an interst relting to the subject of the action and is so situtated that disposing of the action in the person's absence may
(i) as a practical matter impair or imede the person's ability to protect their interst; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or othwerise inconsistent obligations because of the interest.
91
Is stare decisis enough to bring in an absentee?
Generally no.
92
Ex. of absentee needing to be in via rule 19
A sues B for fraud
A sues C for title
A needs title to win fraud case.
Whichever case ends first will determine the other one because to come out differnly would cause interjurisdictional conflict.
Also, a limited fund case.
Also, House suing railroad for nuisance and railroad only way for company to get supplies.
93
Inconsistent obligation
D facing two incompatible injunction decrees (ex. one court orders them to do Y and another X when they can't do both X and Y). This is different than inconsisntet decisions.
94
Double obligation hypo
X takes out life insurance policy. A beneficiary. When older switches benefit to B. X dies. Both get day in court. This could cause X to pay twice. Force A and B into same case solves this problem.
95
How do you know which side a joining party goes onto?
If joining party has interest adverse to P, you join them as a D. If they don't you join them as P.
96
D adding someone and supplemental jurisdiction?
We are more generous because they don't have an alternative.
97
How does D typically change lawsuit structure?
1) Impleader, 2) counter claims, 3) corss claims.
98
Indemnity claim?
If I'm liable to them, then you're liable to me for the same amount.
99
Does Rule 14 require that you implede when you can?
No. You can bring it in a seperate lawsuit. This means that indemnity is a real claim. It can be brought on its own in court.
100
Can you get supplmental jurisdiction for impleader when no SMJ?
Yes. Not excluded by 1367(b) because it doesn't apply to rule 14 joinders by D. You won't have end runs here because it is D who wants to join, not P.
101
When D enjoins how do we determine if there is diversity?
We look at every functional P v D on its own. Not the reformatted lawsuit as a whole. A non-diverse impleader doesn't destroy the diversity of the original when the original has diversity.
102
Can P use 1367 supplemental for a rule 14 joinder?
No.
103
X
X
104
Two things you can implead for?
1) indemnity, 2) contribution.
105
Can 3rd party D add other claims once in through rule 14?
Yes, via rule 18.
106
Clark (KS) sues (neg, breach of contract) AC (NE/NE). AC impleads (indemnity) Howard (KS), CIR (NE/KS), and Lett (S).
Hypo: AC blames Clark for damage. AC wants to bring neg claim against Clark. Can AC bring that claim in this lawsuit? SMJ and JOP?
Ys. Rule 13(a) compulsory counterclaim because it arises out of the same transaction (there is a logical relation). IF AC doesn't bring the claim here, they can't bring the claim later. It would be claim precluded by 12(a).
SMJ? Mandatory claims always get supplemental jurisdiction via 1367(a) because it is logically related.
JOP? By filing the lawsuit P consents to JOP over its person for all the moves that can be made in the lawsuit.
107
Clark (KS) sues (neg, breach of contract) AC (NE/NE). AC impleads (indemnity) Howard (KS), CIR (NE/KS), and Lett (S).
Hypo: Clark borrowed money from AC to buy a boat. Clark still owes 5k on this loan. AC says now that they are in this lawsuit they want to counterclaim with a breach of contract claim. Can this be brought here?
No. This is a permissive counterclaim. They can sue on this claim later if they want to. They can't bring it here because they don't have diversity (amount in controversy).
108
Clark (KS) sues (neg, breach of contract) AC (NE/NE). AC impleads (indemnity) Howard (KS), CIR (NE/KS), and Lett (S).
Hypo: Clark wants to add battery claim against Lett (the 3rd party D). Is this permitted?
Yes. Rule 14. SMJ? No, no diversity and no supplemental becasue 1367. So no????
109
Clark (KS) sues (neg, breach of contract) AC (NE/NE). AC impleads (indemnity) Howard (KS), CIR (NE/KS), and Lett (S).
Hypo: Lett wants to sue Clark for battery. Is this permitted?
Yes. Rule 14. SMJ, yes, no diversity but supplemental jurisdiction.
110
Clark (KS) sues (neg, breach of contract) AC (NE/NE). AC impleads (indemnity) Howard (KS), CIR (NE/KS), and Lett (S).
Hypo: Lett brings battery claim against Clark. Now Clark says they want to bring battery claim against Lett. Does this make any difference?
Clark would argue that this is a compulsory counterclaim, and therefore can get supplemental jurisdiction because it is done through rule 13. Most courts apply § 1367(b) literally. It is still a claim by a P against a person joined under rule 14, so it is barred.
111
Clark (KS) sues (neg, breach of contract) AC (NE/NE). AC impleads (indemnity) Howard (KS), CIR (NE/KS), and Lett (S).
Hypo: Good friend of Clark, Davis, was at Clarks house during repo. Davis got into fight. AC blames both Clark and Davis for damaging the car. Can AC add Davis to their negligence claim.
Yes, via 13(h). If Davis could have been permissive joined under rule 20 had AC been suing originally, then Davis can be added to the counterclaim.
If AC doesn’t include Davis, can Clark add Davis? Yes can implead via 14(b). What if Davis is a Kansas citizen? No diversity. Can we get supplemental jurisdiction? Barred by literal reading. But not an end run so this makes zero sense as a policy matter.
