1. 1 Agenda for 35th Class Review –Supp J –Res Judicata Collateral Estoppel Review Class –2011 exam –Questions you bring Other exams to look at –2000 multiple choice and good choice of law and jurisdiction question –1995 good on amendment and other issues Posted to Secure Documents part of Portal –All are helpful Do as many as you can One page outlines Sleep

2. 2 Supplemental Jurisdiction I Excellent discussion in last class My Test for Supplemental Jurisdiction is consistent with the approach taken by the Supreme Court in Exxon Mobil v Allapattah, 545 US 546 (2005) –Exxon Mobil dealt with case very similar to #13 13. A California plaintiff sues a Massachusetts defendant. The California plaintiff then amends the complaint to join another California plaintiff. The second plaintiff is requesting only $10,000 in relief. –Step 4. Is the claim brought by the plaintiff in the original claim? If no, stop. There is supplemental jurisdiction under 1367(b) If yes, go on to step 5 –“original claim” is claim over which there is subject matter jurisdiction without 1367, e.g. CA v MA. –“the claim” is MA v MA –Since “the claim” is not brought by the plaintiffs in the original claim, my test says there is Supplemental Jurisdiction –So no need to amend my Test to deal with #13 and Supreme Court

3. 3 Supplemental Jurisdiction II Problem is 12 –12. A California plaintiff sues a Massachusetts defendant. The California plaintiff then amends the complaint to join another Massachusetts plaintiff. –Same interpretation of 1367 (e.g. application of my test) says there is jurisdiction, but that would violate the complete diversity rule –4 approaches 1. 1367 overturns the complete diversity rule –Problems »No one thinks Congress intended that. »Would vastly expand diversity jurisdiction 2. Intentionalism I: Text of statute is unambiguous in granting jurisdiction, but intent of Congress to preserve complete diversity rule means that we set aside textualist interpretation –Problem. Supreme Court doesn’t like to use Congressional intent to overrule unambiguous textual meaning of statute

4. 4 Supplemental Jurisdiction III 4 approaches (cont.) –3. Intentionalism II. Statute is ambiguous Step 4 could be: Is the claim brought by the plaintiff in the original claim or by a plaintiff joined by the original plaintiff. Yes, so got to Step 5. Step 5 could be: Was the defendant first made party to the claim by FRCP 14 or 20. Yes, so no J Choose this interpretation, because it better accords with intent of Congress Problem. Inconsistent with Exxon Mobil –which read statute in accordance with unamended Steps 4 and 5 for purpose of case like #13 –4. Supreme Court in Exxon Mobil “the presence of a single nondiverse party may eliminate the fear of bias with respect to all claims [and thus] the special nature and purpose of the diversity requirement mean that a single nondiverse party can contaminate every other claim in the lawsuit.” Note. Case was about fact pattern like #13. Discussion of #12 was dicta

5. 5 Collateral Estoppel Bars religitation of issue –Contrast to res judicata, which bars relitigation of claims Often called “issue preclusion” Policies similar to res judiciata –Save time and money –Prevent inconsistent outcomes

6. 6 Collateral Estoppel Requirements 1. Same issue 2. Actually litigated. No C.E. if party admitted issue in first suit 3. Actually decided. No C.E. if court resolved case without deciding issue –Can be hard to tell if jury verdict 4. Necessarily decided / Essential to judgment –If changing result on issue would not change outcome of case, then no C.E. –If court decides negligence case by finding duty, but no negligence No C.E. on duty CE would not be fair to defendant, because could not have appealed finding of duty –If court decides contract case by deciding that there was no contract and that, even if there was a contract, there was no breach Some courts follow Restatement 2 nd –C.E. applies neither to “no contract” nor to “no breach” »Court may not have thought carefully about »Plaintiff may have thought appeal futile Other courts follow 1 st Restatement and apply C.E. to both

7. 7 Nonmutual Collateral Estoppel I Traditionally, collateral estoppel applied only when parties were the same in first and second suit (like res judicata) Some court allow person not a party to the first suit to assert collateral estoppel, as long as person against whom c.e. asserted was in the first suit (and 4 other requirements satisfied) –Called nonmutual collateral estoppel 2 kinds of nonmutual colleral estoppel –Defensive –Offensive Defensive nonmutual collateral estoppel –Plaintiff sues defendant1 for patent infringement –Court decides that patent is invalid –Plaintiff sues defendant2 for patent infringement –Defendant2 can assert collateral estoppel against plaintiff Because plaintiff already litigated and lost on issue of patent validity –Now accepted in nearly all jurisdictions –“defensive” means asserted by defendant

8. 8 Nonmutual Collateral Estoppel II Offensive nonmutual collateral estoppel –Plaintiff1 sues defendant for defective dam –Court decides that defendant’s dam was defective –Plaintiff2 sues defendant for defective dam –Defendant may be estopped from arguing that dam not defective –Very controversial If defendant loses one case (1 st or 2 nd or 99 th case), would mean that defendant loses all subsequent related cases –But if one plaintiff loses case, then later plaintiffs not bound by c.e Discourages joinder Defendant may not have had incentive to litigate hard in first case –Federal courts have discretion to apply c.e. offensively. Factors: Has there been inconsistent litigation outcomes? Did plaintiff strategically wait (not join) so as to take advantage of offensive non-mutual collateral estoppel Did defendant have sufficient incentive to litigate issue aggressively in first case –“Offensive” means by plaintiff

9. 9 Collateral Estoppel Questions Yeazell p. 750 Qs 1-3 Yeazell p. 753 Q 2 Yeazell p. 756 Qs 1-4 Yeazell pp. 764ff Qs 1c, 2a&b, 5a&b