BEST Civ Pro Outline

8/3/2019 BEST Civ Pro Outline

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CIVIL PROCEDURE ICIVIL PROCEDURE ICOMPLAINT (ADOCUMENTTHATSETSOUTTHEFACTSOFTHECASEANDTHELEGALBASISFORTHECLAIM)

MUST DO TWO THINGS:(1) Invoke, at least by reference, a substantive body of law; AND

(2) Sketch a factual scenario that, if shown to be true, falls within that body of law.

Rule 8(a): a short and plain statement of the claim showing pleader is entitled to relief

FRCP 10(a)

- Name of the Court- Title of Action:- File Number:- Name of all the parties:

FRCP 10(b)- numbered paragraphs

FRCP 10(c)

- Exhibits, reference in pleadings

FRCP 11-deterance of improper conduct

- signing by an attorney, address, phone number, and bar number (stop, think, investigate, andresearch)

PLEADING

What is the function of Pleading?

Give notice to the other party of what they need to defend, nature of the claim,defense and opportunity to prepare;

Narrows issues for trial;

Eliminate false or meritless claims; and defenses and cases which suffer fromprocedural defects;

The gateway to discoverydefine scope of discovery; and

Create a record for judgment and preclude relitigation of decided claims.

Haddle v. Garrison (Do the facts pleaded justify relief under the law? SC say yes)

Bell Atlantic v. Twombly (substantive law; What facts of conspiracy do you have to justifyrelief; Plus Factor; need more facts than just parallel conduct)

Stradford v. Zurich (Rule 9(b) requires a party to state with particularity the circumstancesconstituting fraud or mistake.)


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Jones v. Block(Burden of Pleading; Whoever has the burden of pleading an element of theclaim will also have the burden of producing evidence to demonstrate that allegation)

Christian v. Mattel (Rule 11 requires an attny to make a reasonable investigation of facts tosupport the claim. If he fails, he could be subject to Rule 11 sanctions)

Responding to the Complaint: Do nothing (default), Pre-answer motion, Answer

-Pre-Answer motion stops the clock (20 days to respond after service unless waived60 days)-only 1 pre-answer motion allowed

-AnswerZielinski v. Philly Piers (Rule 8b Admissions and Denials; Answer must specifically identifythe allegation in the complaint which it denies; general denial when complaint contains obvioustruths are bad)Beeck v. Aquaslide (Rule 15 Amended and Supplemental Pleadings; Absent bad faith,prejudice, and undue delay a court can freely grant leave to amend answer)Moore v. Baker (Rule 15(c) Amend relates back, after SOL; 1st complaint made a very small

umbrellainformed consent is narrow issue. Amend sought to add negligence but neg. did notarise out of conduct, transaction, occurance of original complaint)Bonerb v. Caron Foundation (1st complaint of negligenceamend to include counseling

malpractice. Malpractice arouse out of same nucleus of operative facts-Amended arose out ofconduct, transaction, occurance of original neg. claim)

Rule 7: Pleadings Allowed; Form of Motions

7(a)Pleadings

Complaint

Answer

Reply Reply to counterclaim

Answer to cross-claim

Third party complaint

NOT a motion!

7(b)Motions (a request to the court for an order), includes:1. motion itself, or a request for the specific relief sought2. notice of the motioninforming the opposing party3. affidavits if any needed4. memo explaining the grounds for the motionreferences to case facts and supporting

authorities5. proposal orderjudge can sign on the dot if motion granted

Rule 8: General Rules of Pleading

8(a)Claims for Relief, must have ALL of the following:1. short and plain statement of the grounds for jurisdiction2. short and plain statement of the claim showing that pleader is entitled to relief

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3. demand for judgment for the relief the pleader seekWhat is short plain statement? Enough to give D fair notice of what the Ps claim is and the

grounds upon which it rests.

8(b)Defenses; Forms of Denial

must address each element must admit; deny; or claim party is without knowledge or information sufficient to

form a belief as to the truth of the averment(effect of a denial)

Look at Rule 11

8(c)Affirmative Defenses (defendants assertion raising new facts and arguments that, if true,will defeat the plaintiffs or prosecutions claim, even if all allegations in a complaint are true)

8(d)Pleading to be Concise and Direct; Consistency (party may state as many separateclaims or defenses as it has, regardless of consistency)

8(e)Construing Pleadings

Rule 9: Pleading Special Matters

9(b)Fraud, Mistake, Condition of the Mind

Circumstances constituting offraud/mistakestated with specificity/particularity

Conditions of mind the mindpled with generality

9(c)Conditions Precedent

Rule 11: Signing of Pleadings, Motions, and Other Papers; Representations to Court;

Sanctions

11(a)Signature (must be signed, and contain address, phone number, and bar admissionnumber)

11(b)Representation to Court

(1) Not being presented for improper purpose (harassment, unnecessary delay)(2) Claims, defenses, and other legal arguments are warranted by existing law (NOTE:

Sanctions of monetary damages cannot be imposed against a represented party forviolation of this subsection)

(3) Allegations and other factual contentions have evidentiary support

(4) Denial of factual contentions have evidentiary support

11(c)Sanctions (If after notice and reasonable opportunity to respond, 11(b) has been

violated)

If court imposes sanctions, then the prevailing party may recover attorneys fees andcosts. (Christian v. Mattel, Inc.)

Safe Harbor Provision: refers to the time from when the party prevailing on themotion serves the other party; allowing 21 days to either withdraw or appropriately

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correct the challenged paper before filing with the court. (Walker v. Norwest Corpsanctioned after failing to amend after being notified of sanctions)

11(d)Inapplicability to Discovery (Subdivisions (a)-(c) do not apply to disclosures anddiscovery requests, responses, objections)

Rule 12: Defenses and ObjectionsWhen and How Presentedby Pleading or Motion

Motion for Judgment on the Pleadings

Answer: s first claim that addresses the merits of the claim

Common Law FRCP What would you say?

Jurisdictional Challenges 12(b) 1-5 Not here, not now

Request for bill ofParticulars

12(e) rarely granted,disfavored by courts

What the hell are yousaying?

Demurrer(concedes the

truth of the opponentsfactual allegations, but

challenges the legal

sufficiency)

12(b)(6) Facts are true, but so what?

Traverse (concedes thelegal sufficiency of the plea,

but denies factualallegations)

Denial Not true

Confession and Avoidance 8(c) Affirmative Defenses Yes, but?

Counter Claim Now that you mention it, Ihave a gripe of my own

Cross-Claim If anyone did anythingwrong it was

12(a)When Presented

12(b)How Presented

(1) Lack of Subject Matter Jurisdiction (preserved)(2) Lack of Personal Jurisdiction (waivable)(3) Improper Venue (waivable)(4) Insufficiency of Process (waivable)

(5) Insufficiency of Service of Process (waivable)(6) Failure to State a Claim Upon which Relief can be Granted (preserved)(7) Failure to Join a Party under Rule 19 (preserved)

12(e)Motion for more definite statement (rarely invokedusually 12b6)

12(f)Motion to Strike (acts like 12b6 motion directed at single allegation & forces removal ofirrelevant and prejudicial allegations in a pleading)

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12(g)Consolidation of Defenses in Motionif a party makes a motion under Rule 12, butomits from it any defense or objection also available to the party at the time which this rulepermits to be waived by motion, 12(b)THEN party have waived right to make motion basedon the defense or objection it failed to admit; EXCEPT as under (h)(2).

12(h)Waiver or Preservation of Certain Defenses

1. Lack of jurisdiction over the person, improper venue, insufficiency of process, orinsufficiency of service of process ARE WAIVED if:

A. omitted from a motion under (g); ORB. if it is neither made by motion under this rule nor included in a responsive

pleading or an amendment thereof permitted by Rule 15(a) to be made as amatter of course

2. 12(b)(6), 12(b)(7)PRESERVED; may be made in any pleading; motion forjudgment on pleading; or a trial on merits

3. SMJ NEVER WAIVED!

Rule 15: Amended and Supplemental Pleadings

15(a)Amendments, a party may amend once as a matter of course:1. Before a responsive pleading is served; or2. Within 20 days after it is served (if action is one to which no responsive pleading

permitted and the action has not been placed on the trial calendar)3. By leave of court or written consent by adverse party

4. Pleading in response to an amended pleadingmust be within the time remaining forresponse to original pleading OR within 10 days after service of amended pleadingwhichever longer!

15(c)Relation Back of Amendmentsif amendment relates back to original complaint,

dont need to worry about SOL

(1) State law allows relation back; OR(2) So Relatedarise out of the same transaction, occurrence, or event; OR(3) Changes to the party or naming of the party against who a claim is assertedpursuant

to Rule 4(m); within a 120 days from filing original complaintIF the party beingbrought in by amendment:

(A) NOTICEReceived such noticeparty will not be prejudiced inmaintaining a defense on the merits; AND

(B) AWARENESSKnew or should have known that, but for a mistake (thought

it was someone, but not) concerning the identity of the proper party, theaction would have been brought against them.NOTE: Lack of knowledge is not mistaken identity.

______________________________________________________

WHERE CAN A SUIT BE BROUGHT?NEED TO EVALUATE THEFOLLOWING:

1) PJ

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2) SMJ3) Proper Venue

4) Service of Process______________________________________________________

PERSONAL JURISDICTION

Evaluating PJ

1. Statutory authority of the court

a. State courtlong armb. Federal court4(k)

2. Constitutional analysisspecific or general?3. Contacts

a. Purposeful availment ?b. Unilateral activity of ?

4. Reasonableness Factors

a. Burden on b. interest in convenient and effective relief (McGee)c. Forum states interest in controversy (Asahi)d. Interstates interest in efficient litigationwitnesses, evidence, etc.e. Shared states interest in furthering fundamental social policies

***When can a state exercise its power over an absent non resident defendantA statecourt can exercise its power over an absent non resident defendant when the exercise of suchpower is based on certain minimum contacts that the exercise of such power does not offend ourtraditional notions of fair play and substantial justice.

History of PJbrief overview:

(1) That any person located within the boundaries of the state can be served with service ofprocess and subjected to personal jurisdiction.

(2) Transient Jurisdictionthat presence with the forum state can be transitory in nature (justpassing through) to be proper.

(3)In Personam Jurisdictionjurisdiction over the person;

(4)In Rem Jurisdictionjurisdiction over tangible and intangible property; must be attached

prior to filing.(a) True: property is related to the cause of action; must be present at the time of the

suit.(b) Quasi: property is unrelated to the cause of action; recovery is limited to upper value

of propertys worth.

PENNOYER v. NEFF

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Established the following:

(1) A state has exclusive jurisdiction over people and property within its borders.

(2) No state can exercise jurisdiction over people or property in other statesreconcilethrough due process clause

(3) JudgmentsIn Personam without personal service of process shall not be upheld.

(4) JudgmentsIn Rem with only constructive notice (publication) may be upheld.

(5) The full faith and credit clause of the constitution only applies when the courtrendering the judgment had jurisdiction of the parties and of the subject matter.

Introduced 3 elements to establish PJ (general juris):

(1) PRESENCE (territorial)defendant is physically found to be within the bounds of

the territory/state.a. Every state possesses exclusive jurisdiction and sovereignty over persons andproperty within its territory.

b. Corporation is present at principal place of business as well as other placesof substantial connection.

(2) DOMICILEusual place of abodea. Determined by two factors: (1) intent of individual to make a location a

permanent home; and (2) facts indicating that the party had physically locatedthere.

b. Can only have one at a time.c. To change itmust have intent to change place of habitation and must also

have actual change of domicile.(3) ACTUAL CONSENT

a. Defendant is given proper service of process; ANDb. Defendant appears in court.

Collateral Attack:

Defendant makes an attack on a previous judgment for lack of jurisdiction.

Can only be raised if defendant had either not already raised the attack onjurisdiction, or waived the defense of lack of personal jurisdiction under Rule 12.

Can only attack on jurisdictionnot on the merits.

Implied Consent: If defendant appears (and does not file a Special Appearance) and fails to raise a

Rule 12(b) defense, then defendant waives right to raise that defense.

Special Appearance: allows a defendant to appear to object to jurisdiction, withoutletting that persons appearance establish presence or consent so as to itself not be thebasis for jurisdiction.

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Full Faith and Credit (Article 4 of the Constitution): shall be given in each state to the publicacts, records, and judicial proceedings of every other statea court need not enforce ajudgmententered without personal jurisdiction.

Due Process (14th Amendment): guarantees an individual that his rights can be adjudicated only

by a court that has personal jurisdiction over him or hera court cannot enforce a judgmentrendered with out personal jurisdiction.

NOTE: TRANSIENT JURISDICTIONSURVIVES; BESTREMAININGARGUMENTINVOLVESNOTICE

INTERNATIONAL SHOE (Minimum Contacts)[Washington brought suit against Shoe, aDE corporation with main offices in STL, to recover funds it claimed Shoe owed it. Shoeemployed 11-13 salesmen who temporarily lived in WA and sold orders of substantial monetaryvalue. Shoe had many regional sales offices. Shoe was served in person with process to one ofsalesmennotice was mailed to STL, too. Court held that thesystematic and continuousactivities easily met minimum contacts AND the claim was arising out ofthose contacts in WA.

DEFENDANT MUST HAVE: (1) Certain minimum contacts with the state such that themaintenance of the suit does not offend (claim arises out of those contacts) (2) traditional notions

of fair play and substantial justiceMinimum Contacts Test

Nature and Quality of Contacts: (Burger King)

Conduct in question arises out of the contact with the forum state

Carry on activities in forum state

Close sales or perform services

Avail themselves to the benefits of the forum state

Regularly sell products at wholesale or retail prices

Solicit business and advertiseNOTE: Contacts must be VOLUNTARY.

General Jurisdiction: Courts authority to hear all claims against defendant, at the place ofdefendants domicile or the place of service, withoutshowing that a connection exists betweenthe claims and the forum state. Contacts were so continuous and systematic that juris may beallowed even if the claim was completely unrelated to those contacts.

Specific Jurisdiction: Courts authority stems from the defendant having certain minimumcontacts with the forum state so that the court may hear a case whose issues arise from thoseminimal contacts.

The more closely related the contacts and the facts giving rise to the claim, the morelikely the court is to uphold the jurisdictioncontroversy must arise out of thecontacts with the forum state.

Must consider quality and nature of the contacts in forum state:

1. Casual or isolated occurrences are NOT enough2. A single act can suffice3. Quantity not determinative

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Reciprocityhad defendant benefited from the benefits and protections of the laws of theforum state?

HANSON v. DENCKLANo Purposeful Availment [Pennsylvania resident bought trust from

bank in DE. She moved to FL, and died. Heldno jurisdiction over DE bank in FL courts.]Person of interest moved; NOT corporation.

(1) UNILATERAL ACT of trustee moving to FL (sending money to her)DE bank did notpurposefully avail itself to FL law thus invoking the benefits and protections of its laws.

(2) To be able to show minimum contacts you must show reciprocity and that by some act thedefendant has purposefully and voluntarily availed itself of the privilege of conductingactivities within the forum state, thus invoking the benefit and protections of its law.

MCGEE v. INTERNATIONAL LIFE INSURANCE CO. [CA resident bought life insurance

from a corporation. Corporation was then bought out by defendant in TX. Defendant sent theresident a reassurance certificate to offer to insure himresident accepted and paid premiums to

defendants TX office. Suit brought in CA. Heldjurisdiction in CA.] Corporation moved;NOT person of interest.

(1) It is sufficient for purposes of Due Process that the suit was based on a contract which hadsubstantial connection with that state.

NOTE: McGee and Hanson go hand-in-handMirror images of one another.SHAFFER v. HEITNER[Shareholder derivative suit brought against director of a corporation

as individuals who were absent, non-residents of Delaware. Plaintiff attempted,unsuccessfully to getIn Rem jurisdiction by seizing (attaching) the defendants shares of stock,which he claimed to be physically present in Delaware, according to Delaware statute.]

(1) ALL assertions of state court jurisdiction must be evaluated according to the standards setforth inInternational Shoe. Only one standard nowIn Rem andQuasi In Rem are absorbed.

(2) In order for a state to exercise jurisdiction over an absent non-resident defendant, contactsare necessary. Those contacts may include the ownership of property, but mere ownership ofproperty does not conclusively establish jurisdiction, as it did under the regime ofPennoyer

v. Neff.

(3) Looking for proxy of presence (agent, incorporation, domicile, principal place of business)manifestation to obtain jurisdiction over an absent non-resident defendant.

WORLDWIDE VOLKSWAGEN [Plaintiff sues NY distributor (distributes to NY, NJ, CN)and a dealer (showroom in NY) in OK for injuries in an OK car accident. The defendants did no

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business in OK. Helda consumer's unilateral act of bringing a party's product into the forumstate was NOT a sufficient constitutional basis for personal jurisdiction over the party.]

(1) Foreseeability alonereferring to the defendants conduct and connection with the forumstate being such that he or she should reasonably anticipate being haled into court thereis

not a sufficient benchmark for personal jurisdiction under the Due Process Clause.

(2) Stream of Commercecan be contributing element, but is not itself a basis for jurisdiction.Simply because goods can find their way to forum state DOES not make someone liable forentering it into that stream. Stream of commerce DOES apply when the defendant deliversits products into the stream of commerce with the expectation that they will be purchased byconsumers IN the forum state, not just FROM the forum state.

(3) Defendants actions must be purposeful and directed toward the forum state (i.e. businessplan, marketing, etc.)

Five Factor Test forFairnesssubstantial justice and fair play1. Burden on defendant (forum acceptable unless it is so so gravely difficult andinconvenient that a party is unfairly put at a severe disadvantage in comparison to hisopponent. BK)2. Interests of the forum state (McGee: forum had strong interest in3. Plaintiffs interest in obtaining relief4. Interstate judicial systems interest in efficiency5. Shared interest of several states in furthering fundamental substantive social policies

ASAHI METAL v. SUPERIOR COURT [Person injured on motorcycle in CA, filed productliability action in CA alleging that accident was caused by defective motorcycle tire, tube andsealantnaming Cheng Shin, the Taiwanese manufacturer of the tube, as the defendant. ChengShin filed cross-complaint seeking indemnification from Asahi, the manufacturer of the tubesvalve assembly. Asahi, a Japanese corporation, had sold substantial quantity of valve stems toCheng Shinreasonably knew that their stems would go into tires in the forum state. Heldnojurisdiction in CA over Asahi. Mere awareness on the part of a foreign defendant that thecomponents it manufactured, sold, and delivered outside the US would reach the forum state inthe stream of commerce DOES NOT constitute as minimum contacts.]

(1) Purposeful availment test: The substantial connection, between the defendant and theforum state necessary for a finding of minimum contacts must come about by an action of thedefendant purposefully directed toward the forum state. The placement of a product into thestream of commerce, without more, is not an act of the defendant purposefully directed

toward the forum state.

Examples of directedintent or purpose to serve the market in the forum state (designing theproduct for the market in forum, advertising in forum, establishing channels for providingregular advice to customers in the forum, marketing product through distributor who hasagreed to serve as the sales agent in forum)

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-fairness factors appliedfairness irrelevant absent contacts (must establish contact beforeevaluating fairness)

BURGER KING v. RUDZEWICZ [Whether the absent non-resident defendant purposefully

availed himself of the benefits and protection of FL's laws by entering into a contract providingthat those laws would govern franchise disputes and thus established sufficient fairness in theforum state? Heldjurisdiction over defendant in FL.]

(1) Three elements to determine whether defendantpurposefully established minimum contactsin a CONTRACT issue:

Prior negotiations and contemplated future consequences

Along with terms of contracts

Parties actual course of dealing

(2) Contracting with parties in a forum state for business purposes will pull you into that forums

jurisdiction. (reached out and purposefully availed themselves to FLexpect to be haled intocourt)

(3) Defendants purposefully availed themselves to the forum state through reciprocityreachedout beyond" MI and negotiated with a FL corporation for the purchase of a long-termfranchise and the benefits that would derive from affiliation with a nationwide organization.

PAVLOVICH v. SUPERIOR COURT [Whether an absent non-resident's knowledge that hisor her tortious conduct in creating a passive website may harm certain industries centered in astate is sufficient alone to establish purposeful availment on such state?]

(1) Analyze INTERNETACTIVITY bySliding Scale Analysis: [Post-onlyInteractive] Level of activity

Level of business exchange

Intentionally targeting forum state

Level of interactivity and commercial nature

Passive Site: jurisdiction rarely exists in the case of a passive site; the main exception iswhen the site contains material clearly directed at another state (i.e. information thatdefames a specific person in another state).

Active Site: operation of an active site clearly constitutes a contract with the viewers

state, at least if the viewer INTERACTS. Therefore, a seller who contracts to sell goodsto buyer has established contracts with the buyers state.

Calder v Jones Effects Test: Will allow PJ over a party whose conduct was expresslyaimed at the forum state, knowing that the harmful effects would be felt primarily thereand that the Ds would reasonably anticipate being haled into court.

A court may exercise SPECIFIC JURISDICTION over a nonresident defendant only if:

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(1) "The defendant has purposefully availed himself or herself of forum benefits."

(2) "The controversy is related to or arises out of the defendant's contacts with the forum."

(3) "The assertion of personal jurisdiction would comport with the traditional notions of fair playand substantial justice."

***NOW, LOOKINGAT GENERAL JURISDICTION***

PERKINS V. BENGUET CONSOLIDATED MINING CO. [P, non-resident of Ohio, suesPhilippine Co. in Ohio Court. President of company carried on in Ohio a continuous andsystematic activity of the company & there was no alternative forum b/c of war inPhilippenesso court said PJ is good]-despite claim not arising from Ds contact with forum state (specific), if you can show D had

continuous and systematic activity with the state (general), then a court has PJ

HELICOPTEROS V. HALL [company did not have systematic, continuous, or pervasiveactivity in TX to establish heavy contact for general jurisdiction. CEO only made one trip to TX,D did not request that checks be drawn from TX bank or that there were any negotiationsbetween D with respect to the location or identity fo the bank. We hold that mere purchaseseven if occurring at regular intervals, are not enough to warrant a States assertion of inpersonam jurisdiction over a non-resident corporation in a cause of action not related to thosepurchase transactions.]

***PRESENCE***

BURNAM v. SUPERIOR COURT [Husband and wife separatewife moves to CA with

children. Husband domiciled in NJvisits CA for business and to visit with childrenwife

served him with divorce papers. Whether the Due Process Clause denies CA courts jurisdictionover a nonresident, who was personally served with process while temporarily in that state, in a

suit unrelated to his activities?]Holding: presence plus service within the state establishes PJ

Fairness factor is irrelevantif transient/tag jurisdiction then no other questions. It is our firsttrue love!

Presencethe most important part of Pennoyer was its rule allowing a state to exercisejurisdiction over anyone who was served while present in the state. InBurnham the court upheldCAs exercise of personam jurisdiction over who was served while present in state. However,court was dividedno majority opinion.

o Scalias view: held that the long tradition of exercising jurisdiction over people who were

present was enough to show that the practice complied with traditional notions of dueprocess. Therefore, it was unnecessary to apply the minimum contacts test.

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Intl Shoe confined its minimum contacts requirement to situations in which is

not present within the territory of the forum. Minimum contacts is a proxy forpresencewhen is physically present there is NO need to establish or weigh thequality and nature of such contacts!

o Brennans view: argued that the minimum contacts test applied. However, s voluntary

presence, coupled with the service while he was there, gave CA general jurisdiction over.

o Stevens view: refused to join either camp; simply indicated the dispute was a very easy

case.

Defendant cannot be lured into jurisdictionPRESENCEMUSTBEVOLUNTARY!!

Cant be kidnapped and drug across state lines;

Cant be tricked into being present;

Cant be legally induced as by a lawsuit (except for nonresident in some

cases) or criminal trialwitnesses also present cant be served

EXCEPTION: a state has power over anyone who is appearing in a pending

action AND may exercise this power when the claim involved may reasonablybe determined to be concurrent with that action.

**CONSENT**

CARNIVAL CRUISE v. SHUTE [Ticket had contract which required all litigation to bebrought in FL; passenger slips and fallssues for negligence.]

Forum-selection clause: where the parties specify that disputes can be heard only in a particularcourt. If a party sues elsewhere, the opposing party may move for dismissal.

1) Choice of lawdo not purport where suit shall be brought, but do provide that

the substantive law of a particular jurisdiction will govern disputes arising underthe contract (Burger King)

2) Consent to jurisdictionthe parties (or one of the parties) consents to a suit in aparticular place, thus waiving challenges to personal jurisdiction.

3) Forum selectionlimiting the forum to a single location (Carnival Cruise)4) Arbitrationtakes dispute out of the legal system altogether and places them in

an arbitration procedure.5) Cognovitrepresents outer limits of the parties ability to contract out of

procedural law.

Court approaching forum-selection clauses will address two questions:

1) As a matter of contract law, is the clause enforceable?2) Apart from the law of contract, is there some overriding reason that such clauses

should NOT be enforceable?

Reasonable forum selection clause will be valid when:

o forpractical reasons1) companiesinterest in limiting to the selected forum; 2)

dispels confusion as to what forum to use; 3) reduces cost passed down toconsumers by limiting location of litigation

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o forfairness reasons (fundamentally fair at the time the agreement was made; not

when the case is filed)1) cannot be in bad faith to prevent suits, 2) must be areasonable forum, (i.e. their principle place of business), 3) didnt gain saccession to the contract clause by fraud or overreaching.

**NOTICE** Rule 4

MULLANE v. CENTRAL HANOVER BANK AND TRUST CO.

Due process requires that service of process be, reasonably calculated, under all thecircumstances, to apprise interested parties of the pendency of the action AND afford them an

opportunity to present their objections.SERVICEMUSTBEREASONABLYCALCULATEDTOEFFECTUATEACTUALNOTICE!

Notice by Publication CAN BE SUFFICIENT IF whereabouts of are unknown and cannot beascertained with reasonable effortonly viable option.

Long-Arm Statutes (allows service on out-of-state defendants; statutes authorizing cts to reachbeyond their own borders)1. Complies with Due Process 2. Is consistent with the traditional notions of fair play and substantialjusticeGibbons v. Brown [State long-arm statutes may restrict PJ even if the constitution would permit it]-To come within FL juris under the statute, a D must engage in substantial and not isolated activitylawsuit is not enough

SUBJECT MATTER JURISDICTIONCOURTSPOWERTOHEARPARTICULARCASE

1331 FEDERAL QUESTIONgrants jurisdiction over all civil actions arising under

the Constitution, laws, or treaties of the US

Mottley Rulefederal question must be articulated on the face of pleaded complaint;affirmative defenses are NOT relevant in deciding whether the case should be heard inFederal court.

No rule barring FEDERALCLAIMS from being brought in STATECOURT (COURTOFGENERALJURISDICTION).

Challenging Federal SMJ

1) Dismissal under 12(b)(1)lack of subject matter jurisdiction; NOT barred from

bringing suit is state court.2) Dismissal under 12(b)(6)failure to state a claim; barred from bringing suit is

state court (binding on both federal and state courts).

1332 DIVERSITY JURISDICTIONoriginal jurisdiction where:1) Matter in controversy exceeds the sum or value of $75,000; AND2) Diversity of citizenship between parties

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Diversity is determined when action is commenced subsequent changes in domicileduring the actions lifetime do not matter! If action is removed, citizenship is determined atthe time of removal for diversity purposes.

Diversity of Citizenship exists between (citizenship determined by domicile; not

synonymous with resident) Citizens of different states;

Citizens of a state and citizens or subjects of a foreign state;

Citizens of different states and in which citizens or subjects of a foreign state areadditional parties; AND

A foreign state, as , and citizens of a state or of different states.NOTE: ANALIENADMITTEDTO US FORPERMANENTRESIDENCEDEEMEDACITIZENOFTHE

STATEINWHICHTHEALIENISDOMICILED

Citizenship is determined by domicile

A person may have numerous residence, BUT only 1 domicile!

To change domicile, you must (1) physically take up residence in adifferent domicile; (2) with intention to remain there!

1332(a)(1)to be a citizen of a state requires person to be (1) a UScitizen AND (2) a domiciliary of the state.

1332(c)corporations are citizens of state where:o Incorporated; AND

o Principle place of business

Nervelocation of CEOs and other administrators

Musclelocation of everyday business activities,manufacturing plants

Most courts look at BOTH!

Complete Diversity (Strawbridge Rule)no party on one side () may be a citizen of samestate as any party on the other side ().

Amount in Controversy:

In claims for relief other than money, courts will determine amount in controversyby attempting to approximate the monetary value of the relief being sought.

AGGREGATIONo may aggregate ALL claims he/she has against single to exceed $75,000

markclaims DO NOT have to be related. Multiple Ps cannot aggregate if

their claims are regarded as separate and distinct.o 2 or more CANNOT aggregate claims.

o may join another who already has a claim against exceeding $75,000

(under supplemental jurisdiction).o may aggregate claims against multiple only if injury exceeds $75,000

AND state law allows all s to be held jointly liable for entire injury.o Some courts allow aggregation of claim by and counterclaim by to

exceed $75,000.

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1367 SUPPLEMENTAL JURISDICTIONallows federal courts to take jurisdictionover claims which dont have independent grounds for SMJ in such courts.NOTE: BROADENS FEDERAL JURISDICTION

Dependent on THREE variables:1. The basis of the original jurisdiction over the case;

2. The identity of the party--plaintiff or defendant--seeking to invoke supplemental

jurisdiction; AND

3. The rule authorizing the joinder of the party or claim over whom supplemental

jurisdiction is sought.

1367(a)covers all cases over which the federal district courts have original jurisdictionunder Federal Question ( 1331)

Add on state law claim to federal question claim

State law claim must arise from the same nucleus of operative facts

Supplemental jurisdiction includes claims that involve joinder of additional parties

1367(b)cases over which the federal district courts have original jurisdiction only basedonDiversity of Citizenship ( 1332)

No jurisdiction over claims by against persons joined under Rule 14, 19, 20, or 24

when jurisdiction over such claims would not be proper under 1332 (completediversity & amount in controversy).

DOES COVER claims under Rule 14, 19, 20, or 24 brought by .

1367 (c)specifies when a court may decline supplemental jurisdiction (courtsdiscretion)

1) claim raises a novel or complex issue of state law;2) state law claim substantially predominates over federal claim;3) district court has dismissed all claims over which it had originaljurisdiction;4) other compelling reasons to decline jurisdiction; exceptionalcircumstances

Covers

13(a)compulsory claims

13(g)cross claims

Impleader claims under 14(a)by against third party

DOES NOT Cover

13(b)permissive counterclaims

Claims by against 3rd party under 7th sentence of 14(a)when claim rests on

diversity

VENUE

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Dee-K Enterprises v. Heveafil Sdn. Bhd. 1391(d) [General federal venue statute subjectingalien corporations to suit in any judicial distrct overrides other federal statutes that may containspecific venue provisions]

1391 VENUE WHERELITIGATIONWILLTAKEPLACE 1391(a)jurisdiction SOLELY founded only on DIVERSITYOFCITIZENSHIP(look toward 1332);may bring action in:

1. judicial district where any resides, IF ALL s resides in same state;2. judicial district in which a substantial part (not where claim arose) of t\1q

he events or omissions giving rise to the claim occurred, OR a substantial part ofproperty that is the subject of that action situation;

3. FALL BACK VENUEjudicial district in which any is subject to personaljurisdiction at the time the action is commenced, IF no other district in which theaction may be brought otherwise.

1391(b)jurisdiction NOT FOUNDED SOLELY on DIVERSITYOFCITIZENSHIPFED. QUESTION(look toward 1331); may bring action in:1. judicial district where any resides, IF ALL s resides in same state;2. judicial district in which a substantial part (not where claim arose) of the events or

omissions giving rise to the claim occurred, OR a substantial part of property that isthe subject of that action situation;

3. FALL BACK VENUEjudicial district in which any may be found, IF no otherdistrict in which the action may be otherwise brought.

1391(c)corporations reside in any judicial district that has personal jurisdiction over it at thetime the action is commenced; minimum contacts test applied to district (not the state)

1391(d)alien may be sued in any district (includes an alien corporation)

DISMISSAL FOR FORUM NON CONVENIENS ACOMMONLAWDOCTRINE

NOTE: MUSTREFILE!

Federal or State courts may decline to exercise jurisdiction IF the court is a seriouslyinappropriate forum; IF a substantially more appropriate forum is available to ,AND IF transfer under statute 1404 and 1406 is not an adequate remedy.

Allowed when:

alternative forum is available that has jurisdiction

chosen forum is inappropriate due to private and public interest factors

does not consider whether resulting change in law favors one party

Piper Aircraft v. Reynolaw of alternate forum being less favorable to in NOTby itself grounds for denying s motion for forum non conveniens (also, change inlaw favorable to should not be considered)

To determine if current forum is inappropriate must look at (Gilbert Test):

PRIVATE INTERESTSinterests in having the litigation in the mostconvenient location

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o relative ease of access to proof

o availability of forcing attendance of unwilling (compulsory

process)o cost of obtaining attendance of willing

o possibility of viewing premises

o all other practicalities to make the trial of case easier, moreexpeditious, and inexpensive

PUBLIC INTERESTSstate has an interest in not burdening its courts withlitigation not connected w/ the state

o difficulties flowing from court congestion

o the local interest of having local controversies decided at home

o interest in having diversity cases in a forum that is at home w/ the

laws governing ito avoidance of unnecessary conflict of law problems or problems

with the application of foreign lawo unfairness of burdening citizens in an unrelated forum w/ jury duty

1441-1453 REMOVAL STATE COURTFEDERALCOURT 1441(a)who can remove, and where does it remove to?

o ONLY can remove

o ALL served s must seek removal together (i.e., if 1 and 2joined, 1 alone cannot

remove)o being counterclaimed CANNOT remove even if s counterclaim had basis for

original federal jurisdictiono REMOVESto the district court in which the state court (where the action was

originally brought) is located

1441(b)when is action removable?o If a FEDERALQUESTION ( 1331), always removable without regard to citizenship or

residence of partieso If underDIVERSITYJURISDICTION ( 1332), may NOT remove if sued in state of his

domicile (citizen of MO who is sued in MO cannot remove)o Certain statutes specify certain actions as removable ( 1442, 1443); whereas,

certain statutes specify certain actions as non-removable (FELA cases, workmenscomp, etc.)

1441(c)joining non-removable claims with Federal Question claims

o an otherwise non-removable separate and independent claim is removable whenjoined with a Federal Question claim ( 1331); district court may determine case orremand all state law matters

1446procedure for removalo must normally seek removal within 30 days of receipt of complaint

o must file notice of removalsubject to Rule 11 AND setting forth the grounds for

removal

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o must give written notice of removal to all adverse parties

o If initial pleading is non-removable and amends making it removable has 30

days from that point to seek removal; EXCEPT that a case may NOT be removedmore than 1 year after commencement of action IF based on diversity jurisdiction (1332)

1447procedure after removalo Motion to remand because removal lacked SMJ may be made any time before final

judgment.o Motion to remand based on anything else must be made within 30 days after notice

of removal.

TRANSFER RELEVANTONLYIN FEDERAL COURT

NOTE: NONEEDTOREFILE!

1404applies when action was proper in the initial forum/venue

o a district court may choose to transfer to any other district court where the actionmight have been brought (must still have PJ, SMJ and Venue) forconvenience ofparties/witnesses and in the interest of justice

o choice of law remains the same after transfersame outcome regardless of venue

o may be invoked at partys request or sua sponte (on courts own initiative)

o DOES NOT allow for international transfer (forum non conveniens needed for

this)

1406applies when action was improper in the first placeo Requires the district court to dismiss; OR if in the interest of justice, to transfer to

any district in which it could have been brought

SERVICE OF PROCESS

**SUMMONS**

RULE 4: Summons (Service of Process)

Rule 4(d)allows for waiver of service of process

NOTE: BYWAIVINGSUMMONS, NOTWAIVINGFUTUREOBJECTIONTOVENUEORPJ

o has 30 day from when the request is sent to return the waiver (60 days, if outside

any judicial district of US)o has 60 days after waiver was sent to file answer (90 days, if outside any judicial

district of US)normally Rule 12 requires an answer in 20 days, BUYING TIME!o Failure to waive responsible for costs of service and costs of any motion

required to collect costs of service

Rule 4(e)Service upon individuals within Judicial District of US

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o Pursuant to the law for service in the statein which the district court is located OR

in which service is effected; ORo by delivering a copy of the summons AND of the complaint to the individual

personally (in hand service); ORo by leaving copies at individuals home or usual place of abode with some person

residing in the household; must be over 18; AND mentally competent; ORo by delivering papers to an agent appointed by the to receive service of process on

his/her behalf.

Rule 4(f)Service upon Individuals in Foreign Countries

Rule 4(h)Service upon Corporations or Associates

Rule 4(k)Territorial limits of Effective Servicespecifies manner in which service ofprocess is sufficient to establish personal jurisdiction over

o 4(k)(1)(a)if state long-arm statute authorizes jurisdiction in the circumstances of

the case AND it would be constitutional for the state court to assertjurisdictionfederal court may do so.

o 4(k)(1)(b)joined under Rule 14 or Rule 19 AND is served at a place within a

judicial district of the US AND not more than 100 miles of the court houseo 4(k)(1)(c)subject to federal interpleader jurisdiction ( 1335)

o 4(k)(1)(d)service will support jurisdiction if some other federal statute provides

that service suffices to support jurisdiction for a particular typed of caseo 4(k)(2)in federal question cases, over parties who have sufficient contacts within

the US as a whole to constitutionally support jurisdiction, but whose contacts wouldnot suffice to support personal jurisdiction in the courts of any state.

Rule 4(m)Time Limit of Service (service of summons MUST be made within 120 days offiling complaint)

JOINDERPLEADING; INVOLVES PERMISSION AND POWER

Two Part Test:

1) Do the principles of Joinder, governed by FRCP, permit combining theseclaims?; AND

2) Assuming that joinder IS ALLOWED by FRCP, does the federal court havejurisdiction over the state claim thus joined?

Rule 20: Permissive Joinder of Parties (Multiple s and s)MUSTSATISFYTHREECRITERIA;MULTIPLE MAYRECOVERRELIEFTHATIS; ORMULTIPLE JOINEDIF:

1) Joint, several, or in the alternative;2) Arising out of the same transaction, occurrence, or series of transactions or

occurrences; AND3) Share a common question of law or fact.

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Rule 13: Counterclaims and Cross-Claims

13(a)Compulsory Counterclaims

Must be joined RELATES to the opposing party's claim and arises out of the samesubject matter.

Falls within supplemental jurisdiction of the federal courts even if it would be amatter for state court consideration.

If a defendant fails to assert a compulsory counterclaim in the original action, thatclaim may not be brought in a later, separate action (with some exceptions)WAIVED!

Any third party involved must have personal jurisdiction.

1) counterclaim must be against an opposing party

2) must arise from same transaction or occurrence as the claim against you

3) must exist at the time the opposing partys pleading is served to you

Logical Relation Test (Plant v. Blazer)four tests to determine whether a claim and

counterclaim arise from the same transaction:1) Are the issues of fact and law raised by the claim and counterclaim largely

the same?2) Would res judicata bar a subsequent suit on s claim absent the

compulsory claim rule?3) Will substantially the same evidence support or refute s claim as well as

s counterclaim?4) Is there any logical relation between the claim and the counterclaim?

(most popular)

13(b)Permissive Counterclaims

Must NOT be joinedDOES NOTarise outofthe same subject matter as theopposing party's claim or involves third parties over which the court does not havejurisdiction.

Must have independent jurisdictional basis (diversity of citizenship; federal question)

Permissive counterclaims may be brought in a later, separate action.

13(g)Cross Claims against Co-Party (between parties on the same side of the suit1 v. 2)

Party may cross-claim against co-party any claim arising out of the same transactionor occurrence of the original claim.

Party may cross-claim against co-party for indemnity for all or part of original claimasserted against the cross-claimant.

13(h)Joinder of additional parties

Joining may assert a counterclaim or cross-claim against (according to Rule 20)arising out of the same transaction or occurrence.

Rule 18: Joinder of Claims and Remedies

NOTE: ONLYAPPLIESIFTHEREISNOOTHERRESTRICTIVERULEGOVERNINGSITUATION

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18(a)Joinder of Claims (a party asserting a claim to relief as an original claim, counterclaim,cross-claim, or third-party claim, may join, either as independent or as alternate claims, as manyclaims, legal, equitable, or maritime, as the party has against the opposing party)

18(b)Joinder of Remedies; Fraudulent Conveyances (if one claim is dependent on theoutcome of anothercan join two together)

Rule 14: Third Party PracticeIMPLEADER; WHENCANSOMEONEBEREQUIREDTOSHARETHE

PAIN?? IF I AMFOUNDLIABLEYOUOWEME!

made party may assert a claim against another party who is or may be liable to thes claim, asserted by

has 10 days after serving original answer

Rule 19: Required Joinder of Parties

(a)threshold Who SHOULD be joined? Are they necessary to the suit?(b)If we cant get absent party what should happen? If they are indespensible, we cant go on.

EXAMPLE OF COMPLAINT

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF CALIFORNIA

JENNIFER ANISTON, Plaintiff

v. COMPLAINTCASE NO.______________

ANGELINA JOLIE, Defendant; ANDBRAD PITT, Defendant.

THE PARTIES AND JURISDICTION

1. Plaintiff, Jennifer Aniston, is a citizen of California.

2. Defendants, Angelina Jolie, Brad Pitt, are citizens of New York.3. This Court has subject matter jurisdiction pursuant to 28 USC 1332. Plaintiff is a citizen ofCalifornia. Defendants are citizens of New York. The amount of controversy exceeds $75,000.

4. Defendants have transacted business in Malibu, California as hereinafter more particularly described,and is therefore subject to personal jurisdiction of this Court pursuant to Statutes of California.

5. Venue is proper in proper in the Court pursuant to 28 USC 1391 because of substantial portion of theactivities that give rise to this action occurred in California.

FACTS

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6.

FIRST CLAIM OF RELIEF BREACH OF CONTRACT

7.SECOND CLAIM OF RELIEF NEGLIGENCE

8.

WHEREFORE, Plaintiff demands

1. A judgment and order of this Court that Defendant

DEMAND FOR JURY TRIAL________________________

Atty License No. 11111Leggat, Mauze, and Ottsen

25 Narragansett Dr.St. Louis, MO, 63124

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