Civ Pro Outline

CIVIL PROCEDURE FINAL OUTLINE

Jurisdiction

Seven Points to Look for on Jurisdiction (in this order):1. Subject-matter jurisdiction2. Personal Jurisdiction (parties or property3. Notice & Opportunity to be heard4. Service of Process5. Venue6. Removal7. Waiver (where possible; subject-matter jurisdiction can Never be waived)

- Waiver of personal jurisdiction, process, and venue addressed in FRCP 12(h)(1)

A. Personal Jurisdiction

Asks: In what states can Π sue Δ?

- 3 Basic Types of jurisdiction over the Parties:1. In personam – gives the court the authority to bind a party personally

Steps in Personal jurisdiction:1. Does state have statute (long arm)? If yes:2. Is jurisdiction constitutional; does it conform w/ due process?

- Long-Arm Statute: gives state courts jurisdiction over persons who are served while outside boundaries of the state.

- In cases where subject matter jurisdiction is based on federal question, the federal court has personal jurisdiction to the extent that the state could constitutionally exercise jurisdiction over a non-present Δ, whether or not its long-arm statute is satisfied.- FL long-arm: 48.193

- Federal Court In Personam Jurisdiction:A. Federal question cases: jurisdiction to the limits of the Constitution, even if the state courts of the state in which the federal court is sitting would not have personal jurisdiction over Δ

- Δ must have minimum contacts w/ the state.B. Diversity cases: follow the long-arm statutes of the state in which they sit

- Waiver – if Δ does not raise personal jurisdiction objection in his first appearance, it is waived

Special vs. Limited AppearancesSpecial Appearance – Δ goes before court merely to contest its personal jurisdiction over him

- Federal courts do not have “special appearances;” other defenses can be raised in the first appearance w/out waiving jurisdiction objection (FRCP 12(b))- If any other objections are raised, the objection to jurisdiction is deemed waived

Limited Appearance – device used in some states under which Δ in in rem or quasi in rem suit can appear and contest the case on the merits while limiting his liability to the property attached or garnished

- Not mentioned in FRCP; most federal courts follow state court rules of the state in which they sit.

1

Direct Attack on Jurisdiction vs. Collateral attackDirect Attack –Δ actually files a motion to dismiss for lack of jurisdiction or moves to quash service.

- Requires that Δ make a special or general appearanceCollateral Attack - Δ does not enter the case at all but rather allows a default judgment to be entered against her. Then when Π sues to enforce the judgment, Δ attacks the jurisdiction of the ct that entered the default judgment

- If loses, the default judgment will stand w/out the opportunity to try on the merits.

IN PERSONAM: gives court the authority to bind or affect the parties personally

General: Δ can be sued in the forum on a claim that arose anywhere in the worldSpecific: Δ is being sued on a claim that has some connection with the forum (the claim itself arose from activities in the forum)

- Personal jurisdiction over Π: Π submits to personal jurisdiction by filing a complaint in the forum state, both as to his claim and any counterclaims the Δ may assert.

- Δ can’t challenge the states jurisdiction over Π.- Personal jurisdiction over Δ: if Δ is served w/ process in-state, the state has personal jurisdiction over her.

- For Δ served out-of-state, certain due process requirements must be satisfied before the state can exercise personal jurisdiction over her (must have sufficient contact w/ the state to support

jurisdiction

- 3 Main Arguments that court lacks valid personal jurisdiction:1. Δ was not present in the state when process was served on him;2. His act wasn’t w/in the scope of the applicable long-arm statute; and/or3. He lacks “minimum contacts” such that exercise of jurisdiction violates due process

Constitutional Limits

1. Pennoyer v. Neff: a state has power over people and things that are in the state; established that in state service was required for exercise of jurisdiction over a nonresident absent defendant; it’s required under due process of the 14th amend.

Traditional Basis of Jurisdiction:1. Presence : When Δ or Δ’s agent is served w/ process in the forum, this gives general jurisdiction2. Property : Δ has property in the state3. Domicile : Δ is domiciled in the forum4. Consent : Δ consents to jrd

Facts: Neff sought to recover possession of land which had been seized & sold to pay off a default judgment against him, claiming that the judgment was valid, as the court involved had not had personal jurisdiction over himRule: Every state has exclusive jurisdiction over persons & property w/in its territory; courts of that state may enter a binding judgment against a non-resident only if he is personally served w/ process while w/in the state, or, if he has property w/in the state, if that property is attached before litigation begins.

2. Hess v. Palowski: Expansion of basis for exercise of jurisdiction through “implied consent”

Facts: Hess, a driver from PA, negligently struck and injured Pawloski on a Massachusetts public hwy; Mass had a statute that said by operating vehicle in state, you appointed a state official as agent for service of process in the stateRule: A state has the power to declare that all non-residents who use its highways have impliedly consented to submit to the state’s jurisdiction for all actions arising from that hwy usage

2

3. International Shoe: Minimum contacts required if Δ not present when served

Minimum Contacts Test: Δ must have minimum contacts w/ the forum that the exercise of jrd over him does not offend traditional notions of fair play and substantial justice.

- established minimum contact test as constitutional requirement for valid jurisdiction over non-present Δs as part of due process guarantee- Process could now be served outside of forum as long as Δ meets min contacts test- Min contacts are found when the non-present Δ can reasonably anticipate being haled into ct in the forum state, so that it’s fair to subject him to forum state jurisdiction - NOTE: Both domicile and consent, in an of themselves, constitute min. contacts- Introduced notion of specific & general jurisdiction

Facts: Shoe company w/ salesmen in WA state claimed not to be subject to WA’s jurisdiction when the state tried to collect unemployment taxesRule: Corporation will be subject to jurisdiction of any state with which it has “minimum contacts” that make the exercise of jurisdiction consistent w/ traditional notions of fair play & substantial justice

4. Gray v. American Radiator: specific jurisdiction long-arm case

- Illustrates stream of commerce & application of statutory interpretation as part of 2 prong inquiry (1. Long-arm statute; 2. Due process)- Statute used words “tortuous act” so Δ tried to argue that no “act” took place in IL; court rejected this & said that the place of the wrong is where the last event takes place which renders actor liable (“last act rule”)

Facts: Ohio company made a defective water valve and sold it to a company that used it in manufacturing a water heater in PA, which it sold in Illinois, where it blew upRule: International Shoe minimum contacts requirement is satisfied even when a corporation conducts no business w/in a state, so long as the act giving rise to the lawsuit has a “substantial connection” to the state.

5. McGee v. International Life Ins. Co.: represents outer reach of due process; state interest important factor

Facts: McGee, the beneficiary of a life ins. policy held by Int. Life, a TX company, brought suit in CA when Int. Life refused to pay. Company had sent statements to CA thru the mail & accepted payments from CA. This was only contact in CA.Rule: A state may exercise jurisdiction over Δ whose contacts w/ that state consist of only a single act, provided that act is what gave rise to the claim for which jrd is being sought, & was deliberately directed toward that state.

Three Factors considered by Court:Δ solicited K from CA (reached out to CA to sell K)Relatedness – Π’s claim arose directly from Δ’s contact w/ CA (suit arose b/c of breach of K in CA)State’s interest – CA had strong interest for providing forum for their people to help from getting ripped

off by ins. companies

6. Hanson v. Denckla: Some contacts are not enough. Must be purposeful availment.

Key Concepts:1. Must be some act whereby Δ purposely avails himself of the privileges & benefits of conducting

business in the forum state- Purposeful availment occurs when Δ reaches out to the forum in some way

2. Mere unilateral activity by Π will not support jurisdiction3. Sovereignty concern

3

Facts: PA woman set up trust w/ Delaware bank and moved to FL; dies in FL & various claimants to trust filed suit against trustee in FL, claiming that the trust was invalid under FL law.Rule: State may not exercise jurisdiction over Δ if Δ’s contacts w/ the state are negligible and non-deliberate, and the claim does not arise from those contacts.

Supreme Court said bank not subject to personal jurisdiction in FL because there was no relevant contact (a relevant contact under Int. Shoe must result from purposeful availment); Woman moving there isn’t enough.

7. World-Wide Volkswagen: Mere foreseeability is not sufficient to support jurisdiction

Minimum Contacts has 2 functions& 2 components:Functions:

1. Avoid burden of inconvenient/distant forum2. Limits exercise of the sovereign interest of two co-equal states

Components:Contacts – are there minimum contacts?Fairness – is it fair to allow court to exercise jurisdiction?

Fairness Multi-factor Analysis:a. Burden on Δb. Forum state’s interest in adjudicating disputec. Π’s interest in obtaining convenient & effective reliefd. Interstate judicial system’s interest in obtaining the most efficient resolution of controversiese. Shared interest of the several states in furthering fundamental substantive social policies

Facts: NY family passing thru OK was in car accident, & tried to bring suit there against dealer who sold them car in NYRule: In order to be subject to state’s jurisdiction, Δ must have chosen to have some contact w/ that state; considerations of fairness, convenience, and the interests of the state in overseeing the litigation are otherwise irrelevant.

Court said Δs did not reach out to OK & car got to OK b/c of 3rd-party; counter-argument was that it was foreseeable that the car would get to OK – court said not enough to foresee that the product would get to OK. What must be foreseeable is that Δ could get sued in OK!

8. Calder v. Jones: minimum contacts can exist through causing an effect in the forum

Facts: Two people wrote defamatory article in FL & caused effect in CA by hurting personRule: Δ need not enter the forum state; can have min contacts w/ state w/out going into state as long as cause an effect in that state.

Court said publishers should have reasonably anticipated injury in CA & thus should have anticipated being haled into court in that state.

9. Kulko v. Superior Court: No purposeful availment. No consent. Rejects use of “effects test” to facts.

Facts: CA woman sued NY ex-husband in CA for addt’l child support paymentsRule: State may not exercise jurisdiction over Δ who has not purposefully availed himself of the benefits of that state, even if the state has a strong interest in the litigation.

- Court said that exercise of jurisdiction would impose an unreasonable burden on family relations & one wholly unjustified by the quality & nature of husband’s activities in or relating to CA; merely causing an effect in the forum state w/out purposeful availment will not support jurisdiction

4

- In order to be subject to jurisdiction, Δ must avail himself of the benefits of the forum (Complying w/ a custody agreement does not amount to a benefit.)

10. Burger King Corp v. Rudzewicz: Jurisdiction based on contacts arising from K.

Facts: Michigan resident (sophisticated businessman) contracted w/ BK, a FL corp. to operate a BK restaurant in Mich., then defaulted on payments, so BK sued him in FL.Rule: Once it has been established that Δ has min contacts w/ a state, it’s up to Δ to prove that being required to defend there would be fundamentally unfair.

Reiterates components of minimum contact test:1. Contact: in this case, Δs have contact; reached out to FL to enter into 20 year deal which provided that FL law would govern (they availed themselves to FL law)2. Fairness: Δs said unfair to make them litigate in FL b/c BK is huge corp, but ct said that they had to show that the forum was so gravely inconvenient that they were at severe disadvantage in the litigation (Δs failed to demonstrate how jurisdiction in that forum would be fundamentally unfair)

Supreme Court said factors to be considered in whether Δ purposefully established min contacts w/ forum included prior negotiations & contemplated future consequences, along w/ terms of K & parties’ actual course of dealing

- Court looked at: 20 yr franchise agreement, the K itself, Δ’s refusal to cease operations/resulting injury to Π in FL, and that Δs were sophisticated businessmen

11. Asahi Metal Industry Co. v. Superior Court: stream of commerce; Refines purposeful availment inquiry.

Need more than mere awareness. Some indicia of intent to serve that market or forum: actions must be directed at forum.

Facts: Victim of motorcycle accident brought suit in CA court against Taiwan tire-tube maker, who cross-claimed against Japanese manufacturer of the valve assemblyRule: Δ must purposefully avail himself of the forum by MORE than just purring a product into the stream of commerce w/ the expectation that it will reach the forum state; however, such conduct is enough to satisfy min contacts requirement. BUT, once it has been established that min contacts exist, fairness must be met as well, which is much harder to do in case of non-U.S. resident.

Application of reasonableness multi-factor analysis: Heavy burden on Δ & Slight interests of Π & forum state would make exercise of jurisdiction unreasonable & unfair

Two Positions as to whether component manufacturer in a case like this has contact w/ forum:Position 1: Led by Justice Brennan; said that it is a contact if I put the product in the stream of commerce and reasonably anticipate that it will get to state C, D or E. Position 2: Led by Justice O’Connor said that you need more than that, you need what Brennan said PLUS an intent or purpose to serve states C, D and E (advertising in the state, having customers served in the state, etc.) Δ had to take some additional step to avail itself of the forum.

12. Burnham v. Superior Court: Presence in state when served process ALONE is sufficient for jurisdiction

*Should always be cited for personal service on one passing thru state regardless of min contacts*

Facts: While visiting CA for business & vacation, Burnham was served w/ process for a divorce proceeding and contended that CA jurisdiction violated due processRule: Jurisdiction based on physical presence comports w/ due process, regardless of Δ’s contacts w/ forum

5

Affirms validity of transient jurisdiction based on historical tradition; No need for contacts or fairness inquiry. Limits scope of Shaffer to quasi in rem.

Difference from Int. Shoe: Burnham was actually in the state.

Two Positions on whether traditional basis of being served while present in forum survive by itself? Or do you have to assess the Int’l Shoe test?

Position 1: Led by Scalia; said that presence in state when served is its own basis; gives general jurisdiction b/c of historical pedigree and therefore, don’t need to assess Int’l Shoe at all. Int’l Shoe said its test is used if Δ was not present in state when served, so this rationale is consistent with history.Position 2: Led by Justice Brennan; said regardless of historical pedigree, must apply Int’l Shoe’s minimum contact test. Burnham’s contact with CA was only that he was there for 3 days and hanging out in CA for 3 days is enough to give CA general jurisdiction. You have availed yourself of the forum because police would help you, etc.

MORE ON MINIMUM CONTACTS:

Considerations:1. State’s interest in providing a forum for its residents2. States interest in regulating the business involved3. Relative availability of evidence & the burden on the Δ and prosecution in one place rather than another4. Ease of access to an alternative forum5. Voluntariness of contacts w/ the forum6. How much of Δ’s business comes from the forum7. Authority of its agents in the forum8. Performing an act that could foreseeably result in liability-producing consequences in the forum9. Making a K to be performed in the state10. Whether the specific claim is related to the contacts w/ the forum

RULES IN COMMON SITUATIONS:A. Single (Or Sporadic) Contact w/ Forum State: Not enough, unless the claim arises from that contact (specific jurisdiction)B. Claim Unrelated to Contact w/ Forum State: Δ’s contact w/ the state must be systematic & continuous to subject the Δ to forum state jurisdiction (general jurisdiction)C. Tort Claims: Jurisdiction exists if either

a. Δ (or her agent) commits a tortious act inside the forum, & the COA arises from that act; orb. Δ’s conduct out-of-state causes foreseeable injurious consequence in the forum

D. Product Liability Claims: Δ must have made an effort to reach the forum state’s market, not merely by injecting the product in to the stream of commerce, but by some act purposefully directed toward the forum state.

Consent- Implied Consent

Ex. Non-Resident Motorist Statutes: non-resident motorists who are involved in car accidents in the state are subject to jurisdiction in the state’s courts.

- Express Consent:- If party who consented to the jurisdiction was unsophisticated, the K involved fraud, undue influence or overwhelming bargaining power exerted by the other party in obtaining the K terms, and the objecting party didn’t have other “minimum contacts” with the forum, then the forum wouldn’t have personal jurisdiction over him since consent under such circumstances wouldn’t satisfy due process (Burger King v. Rudzewicz)

Domicile – fixed & permanent residence + an indefinite intent to remain and to return after absence- A person can only have one domicile- Traditional basis of personal jurisdiction- Domicile of corporation in state court:

6

- only if incorporated in the state

Foreign Corporations:If a foreign corporation has a sales rep in a state, will that state automatically be entitled to jurisdiction over the corp?

- No. Min contacts are NOT satisfied merely by existence of an agent in-state.- Three separate factors:

1. Does agent transact a significant amount of business for Δ in state?2. Does Δ have some degree of control over the agent?3. Is agent authorized to K for Δ or must orders by shipped out-of-state for

authorization?If claim arises out of foreign corp’s out-of-state activities, in order for state court to have personal jurisdiction over it:

- Contacts must be “systematic and continuous” (Perkins v. Benguet)

COMPONENT MANUFACTURERS:- Factors that determine whether an out-of-state component manufacturer will be subject to forum jurisdiction:

- Amount of business component manufacturer gets from forum- Quantity of its product that winds up in the forum; and- Whether it knew that the component would be incorporated into products that would get into interstate commerce.

- Asahi Metals v. Superior Court: When a company merely puts its products into commerce and the product ultimately is sold as part of a finished commodity, this is NOT sufficient to constitute minimum contacts. (“Stream of commerce”)

- Libel & Slander: subject to same “minimum contacts” test as applied in Int. Shoe. - Fact that Δ may be entitled to protection under the 1st amend does not itself expand on the contacts required for jurisdiction (Keeton v. Hustler)

GENERAL JURISDICTION – jurisdiction based on D’s contact with the forum vs. Specific jurs. Which is based on the cause of action’s ties to the forum

1. Perkins: Court approved exercise of general jurisdiction

Where Δ’s contacts w/ the state are continuous, systematic, and rather extensive, that state can exercise jurisdiction over Δ regardless of where or how the COA arose.

Facts: Stockholder sued Phillippine mining co in OH, based on Co.’s president’s presence & activities there.Rule: When there are sufficient minimum contacts, a state may assert jurisdiction over a Δ even for causes of action arising outside the jrd

2. Helicopteros v. Hall : analysis of general jrd & recognizes concepts of specific & general jurisdiction.

Δ is subject to general jrd if they have continuous & systematic ties w/ the forum.

Facts: Reps of several decedents who died in helicopter crash in Peru sued owner of helicopter alleging that Δ had sufficient contacts w/ TX to render it subject to in personam jrd in TX. Δ had bought helicopters/supplies from TX, sent pilots there for training, and had a meeting there b/w joint venturersRule: If claim arises from activities not related to the forum, the corporation’s contacts w/ the forum will have to be systematic and continuous, amounting to a presence w/in the state to justify jurisdiction (ex. maintaining an office in forum)

Court refused to find general jurisdiction under facts; said mere purchases, even if occurring at regular intervals, are not enough to warrant a state’s assertion of in personam jurisdiction over a nonresident corp in a

7

cause of action NOT related to those purchases. Not could court conclude that sending personnel there for training in connection w/ the purchases enhanced the nature of the contacts w/ TX

TECHNOLOGICAL CONTACTS

1. Bellino v. Simon: Email & telephone calls can constitute minimum contacts to exercise specific jurisdiction

Facts: A baseball memorabilia seller sued 2 men in the trade for allegedly defaming him, resulting in lost sales & reputation damage. While one man only engaged in 1 phone call which he did not initiate, the other man engaged in various phone calls as well as email communications & sent written examination reports to forum state.Rule: The exercise of personal jurisdiction over a nonresident Δ satisfies due process when 1) Δ has purposefully availed himself of the benefits/protections of the forum state by establishing min contacts w/ that state, and 2) exercise of jurisdiction over Δ comports w/ traditional notions of fair play & substantial justice

2. Zippo v. Zippo Dot Com: Sliding Scale Test for Internet Websites*** Not a substitute for traditional cases on jurisdiction, but a useful analytical tool ***

Sliding Scale Test: passive websites at one end of scale & other end are sites which allow Δ to do business outside of forum w/ ppl inside forum; middle of scale are sites which allow communication from outside forum w/ ppl inside forum.

- The likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature & quality of commercial activity that an entity conducts over internet

STEPS IN DETERMINING WHETHER FORUM STATE HAS PERSONAL JURISDICTION OVER Δ:

1. Was process served on the Δ while present in the forum state?If so, there’s valid personal jurisdiction, no matter how briefly Δ was in the state and regardless

of purpose in being there.If not, go to #2.

2. Does the forum state’s long-arm statute provide for jurisdiction over Δ?If so, go to #3.If not, forum cannot exercise jurisdiction over the Δ even if doing so would be constitutionally

permissible on the ground that Δ has minimum contacts w/ forum.3. Δ must have minimum contacts w/ the forum sufficient to give him a reasonable expectation of being haled before the courts of that state.

If consents to jurisdiction or is domiciled in the forum, he has sufficient contacts w/ forum to justify personal jurisdiction

Otherwise, go to #4.4. Are Δ’s contacts w/ the forum voluntary?

If so, go to #5.If not, Δ lacks minimum contacts w/ forum & ct can’t exercise jurisdiction over him

5. From here, analyzing minimum contacts depends on whether cause of action relates to Δ’s contacts w/ the forum.

Specific jurisdiction: if cause of action arises out of or relates to the Δ’s contacts w/ the forumGeneral jurisdiction: if cause of action is unrelated to Δ’s contacts w/ the forum, contacts must

be “systematic and continuous” to justify jurisdiction- Gives forum courts jurisdiction over Δ for any claim, whether related to contacts or not.

6. Is the assertion of jurisdiction reasonable; does it comport w/ traditional notions of fair play and substantial justice?

Consider:a. Burden on Δb. Interests of the forum statec. Π’s interest in obtaining relief.

8

B. Subject-matter jurisdiction- The authority of a court to hear a certain class of disputes- Cannot be waived & court under duty to raise the objection if parties fail to do so.- Party who invokes jurisdiction has the COP & must allege subject matter jurisdiction in complaint- Objection based on subject-matter jurisdiction may be raised at any time during the litigation, appellate level, or after judgment has been entered

Lacks v. LacksFacts: Two yrs after final judgment for divorce was entered, Mrs. Lacks attempted to vacate judgment on jurisdictional groundsRule: In a divorce, a state’s residence requirement goes to the merits of the case & does not involve subject matter jurisdiction

Federal vs. State Courts:- Federal courts are courts of limited jurisdiction: can hear only those cases enumerated under Art III and only to the extent that Congress has authorized them to hear such cases by statute

- 28 USC 1331- State courts are courts of general jurisdiction; jurisdiction is presumed to exist in all cases, but any state can establish limited jurisdiction courts (ex. Family court)

FEDERAL COURT JURISDICTION

Article III: Congress can give less than the full measure authorized by Art. III but cannot go beyond its scope- 2 most important bases:

1. Federal question jurisdiction- 28 USC 1331

2. Diversity jurisdiction- 28 USC 1332(a)(1)

Exclusive vs. Concurrent Jurisdiction- Most federal court jurisdiction is concurrent, which means jurisdiction over the matter can exist in state court as well, unless a federal statute provides otherwise

- However, federal courts do have exclusive jurisdiction over:a. Antitrust matters (28 USC 1337)b. Bankruptcy proceedings (28 USC 1334)c. Patent & Copyright cases (28 USC 1338(a))d. Certain types of securities & admiralty claims (28 USC 1333)

- Diversity jurisdiction is ALWAYS concurrent!

What if a challenge to federal jurisdiction based on diversity succeeds?- The federal court must dismiss the action, unless:

1. There’s subject-matter jurisdiction based on federal question; OR2. The “non-diverse” party is not “indispensable” and can be non-suited to avoid destroying

subject-matter jurisdiction(FRCP 12(h)(3))

- Federal court will not exercise jurisdiction over cases defined by the “laws of the states,” like domestic relation cases, so won’t:

a. Grant divorcesb. Award alimonyc. Determine custody

Diversity Jurisdiction

9

- Authority of the federal courts to hear cases when the parties fall w/in certain categories and the amount in controversy is more than 75K, exclusive of interest & costs- Diversity MUST exist at the time the COA arose- Dispute MUST be b/w the following parties:

1. Citizens of one state v. Citizens of another state2. Citizens of a state v. Foreign state or Citizens3. Citizens of a state v. Citizens of a different state plus Foreign states or Citizens4. Foreign state as Π v. Citizens of a state or Different states

- Important points about Diversity jurisdiction:1. “Citizenship” is the same as “domicile” and it’s determined when the action is filed in federal court 2. In multiple party cases, no Π can be from the same state as any Δ

- This is called “Complete Diversity,” but there are a few exceptions:- Ex. Statutory Interpleader (28 USC 1335): when at least two people are claiming the

same property held by someone else, there’s diversity as long as any two of the claimants are from different states and the amount in controversy is $500

or more.3. The “Amount in Controversy” must exceed $75K; $75K itself won’t suffice

- You CANNOT waive Diversity Jurisdiction!

Complete Diversity: No Δ can be from same state as any Π. 28 USC 1332(a)(1); Strawbridge v. Curtiss- Not required by Art III & Art III also doesn’t require a certain jurisdictional amt- See exceptions listed below under “minimal diversity”

Minimal Diversity: Must be at least one Δ diverse from one Πa. Statutory Interpleader (28 USC 1335)b. Claims covered by supplemental jurisdiction, such as those brought by 3rd party Δs; andc. Class Actions (& some other representative actions) in which only the citizenship of the

representative(s) need be diverse

Domicile: For Diversity purposes, same as “citizenship” and has 2 elements:1. Presence in the state (physical element)2. With the intent to remain there indefinitely (mental elements)

- A person retains his domicile until these two elements unite somewhere else.- Basic rules for Diversity purposes:

1. American Citizens: Domiciled in state in which citizen lives w/ indefinite intent to remain2. American Citizen living Abroad: no domicile w/in the US & can’t sue or be sued in federal court on diversity jurisdiction grounds3. Resident Aliens (non-American citizens): Domiciled in state on same basis as American citizens.- Non-Resident Aliens can sue or be sued in any federal court under “alienage” jurisdiction (28 USC 1332(a)(2))

- In representative actions:1. Class Action: domicile of representative(s) only2. Shareholder derivative suits: domicile of representative(s) only3. Executor: Domicile of decedent 1332(c)(2)4. Rep of Incompetent: Domicile of incompetent 1332(c)(2)5. Rep of Minor: Domicile of Minor 1332(c)(2)6. Unemancipated minor: same domicile as parents7. Married woman (traditional rule): same domicile as husband, even if they live separately8. Armed forces member: same domicile as before entering service9. Prisoner: same domicile as before incarceration10. Student out-of-state: same domicile as before school11. Corporation: state of incorporation and state of principal place of business (PPB)

10

12. Unincorporated Association (ex. partnership/trade union): citizenship in every state of which any member is a citizen13. Incompetent person: same domicile as when last competent

- Note: Beware of improper/collusive joinder, when representative is only appointed to create diversity and has no substantial interest in the litigation, this is forbidden under 28 USC 1359.

- If person has multiple residences, look to these elements to determine domicile:

11

1. Place of Employment2. Voter/Vehicle Registration3. Driver’s License4. Current Residence

5. Situs of other Property or Intangible interests6. Bank accounts7. Club Memberships8. Mailing Address

12

- When is domicile determined for federal court cases?- at point the action is commenced, which in federal court means the day the action is filed w/ the court clerk. Thus, domicile before or after that date is NOT relevant.

Mas v. Perry: for purposes of federal diversity jurisdiction, a party changes domicile only by taking up resident in another state w/ the intent to remain there, and a wife’s domicile is not necessarily deemed to be that of her husband

- Corporations: 1332(c)(1)a. Domestic Corporation: Two Citizenships:1) State of incorporation2) State of principal place of businessb. Alien Corporation: Citizen of the country in which incorporated, regardless of PPBc. Insurers: In a direct action against a liability insurer, if the insured isn’t joined as a party Δ, the corporation has a 3rd citizenship – the insured’s citizenship. 28 USC 1332(c)(1)

Tests for Determining Principal Place of Business: 1. Nerve Center Test: PPB is the corporate headquarters, where the decision-making takes place2. Muscle Test: PPB is where the corporation does a majority of its manufacturing or provides most of its services

- As a very general rule, muscle test seems to control unless the corporation’s activities are evenly spread over several states, in which case the nerve center test seems to control

3. Total Activities Test

- Insurance Companies:Citizen of:

1. Any state where incorporated2. State where has PPB3. State of Citizenship of Insured

Amount in Controversy for Diversity Cases- Must be more than $75K, exclusive of interest and costs; $75K itself does NOT qualify! 28 USC 1332- When Π seeks equitable relief, majority rule is that court will measure the value to Π of the objective sought to be gained- Timing: calculated when the action is commenced (i.e. when filed w/ the federal court clerk)- Π must plead amt in his complaint; If claim is apparently make in good faith, that sum almost always controls. If Δ challenges the amt claimed, and it appears to a “legal certainty” that the claim is really for $75K or less,

the case must be dismissed.- What Π actually recovers is irrelevant to determining jurisdiction

Legal Certainty Test: To dismiss, it must appear to a legal certainty that the amount in controversy is LESS than jurisdiction amount.

- $75K Floor doesn’t apply to interpleader, where $500 is the floor- Attorney’s fees that are recoverable by K or statute considered part of matter in controversy rather than as costs

AFA Tours v. Whitchurch: amount in controversy requirement for federal diversity jurisdiction is satisfied if Π makes a good-faith estimate that the value of the claims, including actual & punitive damages and the value of injunctive relief, meets the required amt

Non-Damage Claims: measure the value of the claim to the Π.

Aggregation: when there’s a single Π and a single Δ, Π may aggregate all claims he has against the Δ, no matter how unrelated the claims are, in order to satisfy the amt in controversy requirement. (FRCP 18)

13

- Where Πs are joint claimants they can aggregate their claims to meet jurisdictional amount

Counterclaims: if Π’s claim doesn’t meet threshold, counterclaim in the same case making the amount in controversy more than threshold generally NOT considered

- Exception: Horton v. Liberty Mutual – allowed counterclaim to be considered for jurisdiction amt- A compulsory counterclaim does not have to met the jurisdictional amount b/c the court has supplemental jurisdiction over it, but a permissive counterclaim MUST meet the jurisdictional amount requirements

Collusive Joinder §1359: Manufacturing diversity so that the suit can be brought in federal court- 1359 does not cover collusive joinder to destroy diversity- Kramer v. Carribean Mills – leading case on collusive joinder- Test to determine validity of an assignment:

1. Are there good business reasons?2. Did the assignee have a prior interest in item or was the assignment timed to coincide w/ initiation

of suit?3. Was the assignment partial or complete?4. Did the assignee give any consideration?

Is there any evidence of an admission it was done to manufacture diversity jurisdiction?

Federal Question §1331- When the cause of action arises under the Constitution, treaties, or laws of the US (28 USC 1331)

- Either federal law creates the cause of action or the Π’s complaint requires resolution of a substantial question of federal law. Court will look at the issues raised in Π’s complaint

- If complaint doesn’t raise a federal question, case must be dismissed for lack of subject-matter jurisdiction unless diversity or some other ground for federal court jurisdiction exists - FRCP 12(h)(3)

- Citizenship & Jurisdictional amount IRRELEVANT!- States have concurrent jurisdiction over federal question claims unless exclusive to federal courts

- Ex. federal courts have exclusive jurisdiction over Bankruptcy (1334) and Patent (1338) claims- Π cannot get into federal court by anticipating a federal defense.

2 Question Test:1. Whether exercise of court jurisdiction is permissible under particular statute2. Did Congress have the power to enact the statute under Art. III Sec. 2

Traditional Reasons for Federal question jurisdiction:1. Provide litigants w/ judicial forum of judges skilled in Constitutional & Federal law2. Need for Uniformity in the law3. Provide a forum to litigants more amenable to federal claims & questions (prevents hostility toward

federal interests)

Federal Question must be substantial or important! If it is in the background, then that is a factor in deciding whether there is FQJ.

Protective Jurisdiction: Even if a case doesn’t otherwise satisfy Art. III jurisdiction, court can entertain the action if it’s sufficiently important to further a federal interest (ex. U.S. v. Lopez – Congress has compelling interest in gun control and safety in schools)

Well pleaded complaint rule: basis for jurisdiction must appear on face of complaint; can’t invoke jurisdiction based on what Δ puts in his answer or what you think he’ll put in his answer.

Artful pleading doctrine: can’t mask federal questions in the complaint to prevent FQJ (also states same rule as well-pleaded complaint rule)

14

DETERMINING WHETHER ARISES UNDER FEDERAL LAW OR CONSTITUTION:

1. Osborn v. Bank of US: Ingredient Test – outer limits of federal question jurisdiction

*** This is the case to cite to extend federal jurisdiction to the maximum!!! ***

Facts: Bank of U.S. sought to enjoin OH state tax auditor from collecting a tax which the Bank alleged was unconstitutionalRule: So long as federal law is present to the extent that it is an ingredient of the issue of the case, controversy, or COA, there is federal question jurisdiction

2. American Well Works v. Lane: Creation Test

Creation Test: A suit arise under the law that creates the COA (sufficient to resolve majority of federal question jurisdiction inquiries)

Limitation on Test: presumes that every federal created COA will invoke FQJ and no state created COA will ever create FQJ, but there are instances where state COA have federal issues imbedded in them that will invoke FQJ & there are instances where federally created COA will not invoke FQJ

Facts:Π applied for patent for water pump & Δ claimed that Π’s pump was infringing on his patent for his water pump so Π sued in state ct for slanderous statements made by Δ about Π’s business. Δ moved to fed ct.Rule: The fact that a lawsuit relates to a federal matter doesn’t convert it into a case arising under federal law if the suit is really created in state law.

3. Louisville & Nashville R. Co. v. Mottley: anticipation of federal defense does not raise federal question

Facts: Mottleys rec’d lifetime passes on RR as settlement for injuries and after Congress passed law that RRs couldn’t give away free passes, the RR refused to honor the Mottleys’ passes. Mottleys sued for specific performance & said in complaint that federal law did not apply to themRule: In order to obtain FQJ, a Π’s COA must involve a federal question, rather than anticipating that a Δ’s defense will raise a federal question.

4. T.B. Harms

Facts: TB Harms appeals a dismissal of its complaint for lack of federal jurisdiction, alleging that a dispute involving its rights to a contractual copyright assignment arises under federal copyright lawRule: COA alleging assignments of copyrights does NOT arise under the Copyright Act for purposes of FQJ

Court said that resolution of dispute didn’t require court to interpret Copyright Act, or seek damages granted by Act & thus doesn’t invoke FQJ

- Would have invoked FQJ if: 1. Complaint sought remedy conferred by piece of legislation2. Complaint required construction of the Act3. Important federal issue was at stake

5. Smith v. Kansas City Title & Trust: FQJ if resolution of claim depends on construction/application of Constitution or laws of U.S.

Rule: Even though state law created the claim, If it appears from the complaint that the right to relief depend on the application or construction of the Constitution, that will be deemed as arising under and thereby conferring federal jurisdiction

15

6. Shoshone Mining Co: Federal law depending on State law

Facts: Federal law/statute created the COA but dictated that it was local or state customs which defined the right to possessionRule: Where a federal law depends on state/local law to define rights, no FQJ

7. Merrell Dow: if Congress didn’t create private COA, didn’t intend to give FQJ

Facts: In a suit for negligence for improperly labeling a prenatal drug, in violation of a federal statute, Merrell Dow attempts to obtain FQJRule: A state-law private action which alleges a violation of a federal statute, “arises under” the laws of the US only if Congress intended to provide a federal remedy for the statutory violation.

Factors to evaluate whether a federal COA lies:1. whether Πs are part of the class for whose special benefit the statute was passed2. whether legislative intent reveals a purpose to provide a private COA3. whether the federal COA would further the underlying purposes of the legislative scheme4. whether COA is a subject traditionally relegated to state law

8. Grable Sons:

Facts: IRS seized property of Π to satisfy tax delinquency & sold property to Δ. Π sued to quiet title b/c claimed IRS failed to notify Π of the seizure of the property in exact manner required by statuteRule: There is FQJ where the disposition of a case depends on the interpretation of a federal law

Court said the national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of FQJ over the disputed issue on removal which would not distort any division of labor b/w state and federal courts

4 Part Test:1. Necessity – does a state law claim necessarily raise a stated federal issue?2. Disputed3. Substantial4. Disruptive – federal court or forum could entertain w/out disrupting any Congressionally approved

allocation of balance of state/federal responsibility

Court said that Merrill should not be viewed as a case where the absence of a private COA was the hinge of the decision; instead, the disruptive nature was the hinge.

SUPPLEMENTAL JURISDICTION

Basis by which a federal court can execute jurisdiction over a related, non-federal claim when a federal and non-federal claim are brought in the same suit- Only concerned w/ this when addt’l claim lacks basis to come into federal court

Doctrine of Pendent Jurisdiction- allows Π to add state-law claims and parties to a federal question lawsuit involving the same parties, even though those claims and parties wouldn’t otherwise be allowed in federal court.

TEST FOR PENDENT CLAIMS:There must be a common nucleus of operative fact b/w the federal question claim and the state claim. - Determination is discretionary w/ the judge.- Applied in determining whether a court may exercise supplemental jurisdiction (28 USC 137)

16

United Mine Workers v. Gibbs: “common nucleus of operative fact”

Facts: Gibbs sued the United Mine Workers of America on both state and fed claims, and Supreme Ct reviewed district ct’s decision to hear both claimsRule: A fed ct may hear Π’s state law claims, based on the doctrine of pendent jurisdiction, whenever one claim arise under federal law & the state and federal claims derive from a common nucleus of operative fact (claims arise from same transaction or occurrence)

- Reflected that scope of federal jurisdiction should be sensitive to considerations of judicial economy, convenience, and fairness to the litigants- Federal question raised must be SUBSTANTIAL!- Discretionary Factors & Concerns:If Federal claim is dismissed before trial, court should dismiss the state claimIf state issues predominate, state claim should be dismissedIf other non-jurisdictional reasons warrant dismissal, court should dismiss state claims

TEST FOR PENDENT PARTIES:Πs can add parties in federal question (not diversity) cases as long as the claim against the pendent Δ

fits the “common nucleus of operative fact” test.- Still applicable under supplemental jurisdiction

Aldinger v. Howard: pendent party jurisdiction more limited than pendent claim jurisdiction

Facts: Aldinger sued several county officials for federal civil rights violations and attempted to obtain pendent federal jurisdiction over state law claims against county itself.Rule: A federal court may grant pendent party jurisdiction to a state claim against a Δ which is derived from a common nucleus of operative fact w/ a fed claim against a separate Δ, if the statutory grant of subject matter jurisdiction did not expressly or implicitly negate such joinder or if judicial efficiency warrants such joinder

Court said that county could not be sued under §1983 and there was no independent basis for jurisdiction; Congress expressed its intent that counties couldn’t’ be liable for this type of violations

Doctrine of Ancillary Jurisdiction- allows Δs to add claims and parties to a diversity- based lawsuit when those claims and parties wouldn’t otherwise be allowed in federal court

- Two most important types of claims covered by ancillary jurisdiction:1. Compulsory counterclaims2. Impleaders

Counterclaim – Claim by Δ against the Π and it’s compulsory if it arises from the same operative facts as the Π’s claim.Impleader – device that permits Δ to bring in other Δs if they’re responsible for all or part of whatever the Δ winds up owning Π.

Kroger: Supreme Court refused to permit extension of ancillary jurisdiction in diversity context. Kroger as Π could not assert claim against non-diverse Owen, who was impleaded into the suit as a 3rd-party Δ under Rule 14. It would violate or circumvent rule of complete diversity

- Court suggested ancillary jurisdiction would exist over compulsory counterclaims, cross-claims, and 3rd-party claims

Finley: Federal court had exclusive jurisdiction over Federal Torts Claim Act & refused to permit state claim against nondiverse utility company. Invited Congress to address issue, which it did by adopting §1367 (below)

17

28 U.S.C. § 1367: - Pendent and ancillary jurisdiction are united under a single label, “Supplemental jurisdiction”- Passed in response to Finley

General Principles:1. Federal district courts may exercise jurisdiction over supplemental claims forming part of the same case under Art. III of the Constitution, which formed the basis for the court’s original jurisdiction, including claims that involve the joinder or intervention of additional parties2. Federal district courts may NOT exercise supplemental jurisdiction over claims/parties in a case based on diversity if doing so would encourage Πs to evade the requirements of complete diversity as required by §1332 by naming initially only those Δ whose joinder satisfies 1332’s requirements and later adding claims not w/in original federal jurisdiction against other Δs who have intervened or been joined on a supplemental basis.

1367(a): Encompasses Gibbs common nucleus concept Only applies to federal question cases Grants supplemental jurisdiction over all other claims that are so related to claims in the action in

such original jurisdiction that they form part of the same case/controversy Includes Joinder/Intervention of Parties & Counterclaims Subject to the narrowing limits set out in 1367(b)

1367(b): Excludes certain claims by Πs against 3rd parties Applies only in diversity cases Claims Excluded:

o Rule 14 claims by Πs against 3rd parties (Codification of Kroger)o Claims by Πs against parties joined under Rule 19 or Rule 20o Claims by Πs against parties intervening under Rule 24o Claims by persons proposed to be joined as Πs under Rule 19 that do not meet jrd requirements

of 1332o Claims by Πs who seek to intervene under Rule 24 that do not meet jrd requirements of 1332

1367(c): Incorporates discretionary approach of Gibbs in allowing court to decline to exercise supplemental jurisdiction when:

1. Claim raises a novel or complex issue of state law2. State law Claim substantially predominates 3. All Federal claims have been dismissed4. In exceptional circumstances, other compelling reasons, such as jury confusion due to state &

federal claims having different elements

Executive Software North Amer . :

Facts: Lower court declined pendent supplemental jurisdiction over state claims for discrimination on basis that retaining state claims would require substantial time & expenditure, Rule: A court can deny supplemental jurisdiction over pendent state law claims only if one of the exceptions of 1367(c) is satisfied.

Court said that the district court would have to establish a higher threshold before declining supplemental jurisdiction

Exxon Mobil Corp: held that in a class action under Rule 23 based on diversity, if one of the named Πs satisfies the jrd amount requirement, then the federal court has supplemental jurisdiction over claims of any unnamed class members that do not meet the jurisdictional amount. (only minimal diversity required)- Also in an individual suit where multiple Πs join under Rule 20, if one Π meets the jrd amt, ct has supp. jurisdiction over the claims of the other Πs taht do not satisfy the amt in controversy (but there must be complete diversity)

18

Kokkenen v. Guardian Life Ins. Co . : when court dismisses federal question case w/ prejudice and there remains no diversity or federal question, court loses jurisdiction to enforce settlement. If court dismisses w/out prejudice or w/ leave to amend, does not lose jurisdiction

- Other Claims & Parties under §1367:1. State-law claims & additional parties related to those federal question claims over which the court already has jurisdiction b/c they arise from a common nucleus of operative fact2. Compulsory counterclaims (FRCP 13(a)) – not permissive ones!3. Joinder of additional parties to compulsory counterclaims (FRCP 13(h))4. Cross-claims by one Δ against another (FRCP 13(g))5. Impleader of 3rd-party Δs (FRCP 14), but only as to claims by and against 3rd-party Πs and claims by 3rd-party Δs, NOT claims by the original Π against 3rd-party Δs.6. Multiple Πs who join under permissive joinder (FRCP 20), but multiple Δs under Rule 20 are NOT covered.7. Unamed class action Πs, so long as the named Πs meet the amt in controversy requirement

- Other Claims that do NOT fall under §1367:- Those brought by any party in the case of a compulsory joinder (FRCP 19(a))- Those brought by prospective Πs who try to intervene (FRCP 24), b/c this would encourage parties to evade the complete diversity requirements of §1332

- Jurisdiction over the parties must still be satisfied, as must service of process.- Venue probably need not be satisfied, since venue has been held to apply only to Π’s original claim

C. Service of Process

- The method by which the summons & complaint in an action are delivered (Procedural)- FRCP 4(a) & (b) tells what goes into summons (FRCP 3: Filing complaint; action is commenced when file complaint.)- Multiple Δs must each get separate summons- FRCP 4(m) 120 days to serve process after file complaint

Functions:1. Notifies Δ who has been sued of the pendency of suit & gives them oppty to be heard2. Triggers the personal jurisdiction of a court

SCOPE: - In state or federal courts, process generally may be served anywhere in the forum state.

- Federal court may also use the state’s long-arm statute to serve process on out-of-state Δs; FRCP 4(k)- In Federal court only, for certain parties (e.g. necessary parties, parties to a compulsory counterclaim, and 3rd party Δs) process can be served w/in 100 miles of the courthouse where the action takes place, even if this encompasses areas in other states. FRCP 4(k)- In certain cases, nationwide service of process is permissible (e.g. statutory interpleader under 28 USC §2361)

REMEDY:If process is served improperly, Δ should file a motion to quash & if granted, the court will dismiss the case.

Federal Court Cases:

Geographic limit of service:- FRCP 4(k)(1)(A): can serve process throughout state in which federal court sits; also, can serve out of state if a state court in that state could do so (ex. federal court can use state’s long-arm statute)- FRCP 4(k)(1)(B): “100 mile bulge rule;” allows for personal jurisdiction over Δs added under FRCP 14 and 19 if they are served w/in 100 miles of the courthouse

19

- FRCP 4(k)(1)(C): allows national service over Δ who is a fed interpleader- FRCP 4(k)(2) allows nationwide service on questions of federal subject matter when Δ is not subject to jrd of the cts of general jrd of any state; court can take jurisdiction to the max extent allowed by the Constitution, even if the state long-arm statute will not reach that far.

Process Server:- FRCP 4(c)(2): Service of process can be made by any non-party at least age 18.

- Π cannot serve process

D. Notice and Opportunity to be Heard

- Notice must give the person reasonably adequate information of her rights

1. Mullane v. Central Hanover Bank : notice must be reasonably calculated, under the circumstances, to give person actual notice

- Actual notice NOT required- For known beneficiaries, mailing notice to their last known address is sufficient notice.

Facts: Central Hanover Bank petitioned for judicial settlement of a trust & provided notice by publication to all of the beneficiariesRule: Notice by publication fails to comply w/ due process where the names & addresses of the parties are known

2. Greene v. Lindsey: Notice by posting on door not sufficient notice in some circumstances

Facts: Statute allowed sheriff to post service of summons on doors in Landlord/Tenant actions if Tenant cannot be found & there isn’t anyone over 16 to leave summons with.Rule: Notice must be reasonably calculated to inform a tenant of the pendancy of an action.

Court held that under circumstances, notice by posting on an apartment door cannot be considered a reliable means of letting interest parties know that their rights are before the courts

3. Jones v. Flowers: Additional reasonable steps when aware that attempt at notice failed

Facts: State sent certified letter to tell homeowner that was going to sell home b/c of unpaid taxes. Letter was returned to state and so it knew notice wasn’t received.Rule: If one becomes aware that notice was not actually received, may have to pursue other available means of giving notice

Court said the state should have taken additional reasonable steps to notify Π (ex. regular mail, posting)

4. Maryland State Fireman’s Assoc. v. Chaves: strict compliance w/ service provisions required

Facts: Default judgment was entered against Δ who was served by mail & failed to return the acknowledgment or appear in the actionRule: Π must strictly comply w/ the service provisions, even when Δ has actual notice of the suit.

5. National Equip. Rental: agents appointed through contract

Facts: Δ was granted motion to quash a complaint for invalid service, where service was effected on an agent expressly appointed in a lease agreementRule: Service upon an expressly designated agent is proper, even if the agent is not required to deliver notice to Δ.

20

Notice by publication- Generally not sufficient; presumptively invalid.- Only time permissible: if a person cannot be found after “reasonable diligence” is employed to find her.- Must be shown that Δ’s name & address are not known- Last resort: if anything else will work, Mullane will always require you to take additional steps.

Constructive Notice: means for notifying Δs who cannot be located w/in the state (including temporarily absent domiciliaries, non-resident Δs, etc.

- Generally satisfied by certified or registered mail.- Doesn’t require actual notice but rather service that is reasonably calculated under the circumstances to give the party actual notice.

FEDERAL COURT: FRCP 4

Waiver of Personal Service:FRCP 4(d) – service of process may be mad by first class mail if accompanied by a “request for waiver of service,” a notice of the litigation, and a copy of the complaint.

- Not waiving jurisdiction defenses, just agreeing to receive summons/complaint through means other than personal service- If Δ waives service of the summons, service is complete- If Δ doesn’t return the waiver, other means of service must be used, but Δ will be charged the cost of personal service unless can show good reason why shouldn’t be find. - Δ in U.S. but not in jrd given 60 days instead of 20 if waive- Foreign/U.S. citizen out of country given 90 days instead of 30 days to file answer if waive- Lawsuit is deemed commenced when file waive

Requirements:1. In writing, address to Δ, sent by 1st class mail or other reliable means2. Provide w/ copy of complaint3. Identify court in which case is proceeding4. Date on which notice was sent & give reasonable amount of time to respond (30 days or 60 for Δ

outside judicial district where case is pending)5. Extra copy of complaint & notice, with a pre-stamped return envelope

FRCP 84: must inform of consequences of both compliance & non-compliance or refusal to waive

FRCP 4(e)(1) service in federal court can be done in the manner permitted by state in which federal court sits.

FRCP 4(e)(2) gives 3 methods for serving process on personPersonal: hand documents to person directlySubstituted: AT Δ’s usual abode serve someone of suitable age & discretion who resides there

Caveat: process server must demonstrate he looked for principal first before substituted service.Agent: can serve Δ’s agent who has been appointed either by K or by law

FRCP 4(f): Service on Individuals OUTSIDE U.S.- 4(f)(3): other means- Rio: 9th Cir. decision approving service of process via e-mail internationally; was approved b/c was an international scofflaw avoiding process server. Said don’t necessarily have to exhaust all other methods before service via e-mail.

- Problems w/ email service: no real verification intended recipient got service & spam screen could reject email.

FRCP 4(h) Service on Corporations:- Give papers to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process

21

- If can’t find person to serve at corp under 4(h), can look to state statute- Florida: Ch. 48

Challenge to Personal ServiceFRCP 12(b)(2): judgment has finality & can’t challenge in another court w/ collateral challenge- bound by that judgment once make special appearance; if don’t appear, can attach in collateral suit- BOP: Π has burden to show prima facie evidence that jrd exists

Pre-judgment Seizure of Property

Writ of Attachment: real or personal property is seized to prevent disposition of the property to secure the enforcement of the final judgment

Creditors: Due Process Steps for Repossessing Goods (Mitchell v. W.T. Grant)1. Make statement under oath reciting facts that support the claim to a judge (not a clerk/sheriff)2. Bond the chattel to be seized to protect the debtor from wrongful seizure; and3. Debtor must be given an opportunity for an immediate post-seizure hearing.

1. Sniadach: garnishment of wages

Facts: Wages were garnished under statute permitting garnishment of up to ½ of wages w/ certain exemptions & 10 days to serve debtor after the garnishment actionRule: Due process is violated if there is no prior notice & opportunity for a debtor to question the propriety of the claim of creditor

Court looked at: Clerk issued process; No prior notice; Wages may be unfrozen if trial on merits ever held; No exigent circumstances; Deprivation would press upon debtor’s ability to sustain self.Court said: Debtor due more process than afforded under Wisconsin statute.

2. Goldberg v. Kelly: termination of welfare benefits

Facts: NY permitted 7 days notice and oppty to make written submission & a post-depravation hearing

Important for 5 reasons:1. New cause of action to enforce entitlement to due process: 42 USC 19832. Teaches about fair process (exchange of info, discovery, notice & oppty to be heard, impartial decision-maker)3. Reflects sharp division in how our judicial system treats Constitution4. Takes into acct the relative status of the parties5. Exemplifies that process varies depending on the nature & type of interest at stake

3. Fluentes v. Shevin: replevin of household goods

Facts: Debtors challenged constitutionality of FL and PA statutes allowing seizure of goods covered by an installment K w/out providing an oppty for the debtor to be heard prior to seizure. (Writ issued w/out notice. Ex parte. Consumer adhesion contract. Creditor need only post bond double in value & file repossession complaint. Clerk issues writ. Conclusory allegations would suffice. Post seizure, debtor could defend on merits. Under Fla. law, debtor could recover property by posting bond. Only safeguard trial on merits. Pa statute did not require creditor to even initiate repossession action. Under Pa law, debtor may never have hearing.)Rule: In order to comply w/ procedural due process, notice & oppty to be heard must be provided prior to seizure of any protected property interest

Court said neither bond nor damages action suffices to afford due process. Fact debtor lacked full title irrelevant. Due process applies to any significant property interest.

22

- gov’t interest would have to be extraordinary to warrant such an ex parte proceeding (there was no gov’t interest in this case)

3. Mitchell v. W.T. Grant: Sequestration statute with ex parte procedure passed muster

Facts: W.T. Grant, who sold goods to Mitchell on an installment sales K, obtained a writ of sequestration of the goods w/out providing Mitchell a prior oppty to be heard (Required creditor to establish specific allegations by verified petition. Facts involved vendor lien that would extinguish if property transferred. Provided immediate post seizure hearing for debtor. Debtor can regain possession by posting bond. Creditor had to establish claim. Bond required by creditor. Judge passed on issuance of a writ.)Rule: Statutes allowing for attachment or sequestration w/out a prior hearing do NOT violate due process if procedural safeguards exist.

Court weighed risk of wrongful deprivation in context of issues to be determined & balanced creditor’s & consumer’s interest.

Differences from Fluentes: Seller must establish probable success through documentation Specific allegations Vendor’s lien Procedure to allow debtor to immediately reclaim property & make creditor show proof Writ of replevin must come from judge instead of clerk

4. North GA Finishing v. Di-Chem: Garnishment where statute lacked features of Mitchell.

Facts: GA garnishment statute allowed Di-Chem to attach bank acct of N.GA Finishing w/out providing pre-attachment notice or an oppty to be heard.Rule: In order to comply w/ procedural due process, attachment by garnishment requires prior adversarial hearing or certain procedural safeguards.

Court looked at: difference from Mitchell and said there was NO due process.

Differences from Mitchell : Lacking saving features of statuteNo immediate post-seizure hearingNo judicial officerNo specific allegations; Conclusory allegations permitted

5. Connecticut v. Doehr: balancing test to see if attachment w/out notice or hearing violates due process

Facts: Doehr’s property was attached pursuant to a state statute, w/out prior notice or hearing, and Doehr claimed the attachment violated due processRule: Where the risk of erroneous attachment & the harm to the aggrieved party outweighs the interest of the party seeking attachment, property cannot be attached w/out notice & a hearing.

Matthews v. Eldridge Balancing Test:1. Private interests at stake2. Gov’t interest3. Risk of erroneous deprivation via process in place

Court looked at interest of creditor, homeowner, and gov’t & also that ripe for abuse & risk of erroneous deprivation great.

23

E. Venue

- The place, considering only those courts that have jurisdiction, where a given action will be heard. – key is convenience!- Only an issue after jurisdiction over the parties exists- Procedural question of administrative convenience- Determined by statute – 1391 main venue statute

1391(a) – diversity 1391(b) federal question 1391 (c) corporations

- Venue CAN be waived!

- Difference from jurisdiction: jurisdiction refers to the power of court to hear a case; venue refers to the appropriate place for the trial

Federal: what federal district will hear the trial?- If objection to venue is not made at the same time as an objection to jurisdiction, objection to venue waived.

- Diversity Cases: 28 USC 1391(a) : 1. where any Δ resides, if all the Δ reside in the same state; or2. where a substantial part of the events giving rise to the COA occurred, or if the subject matter relates to property, where the property is located; or3. Fallback Position (if neither 1 nor 2 allows for possible venue) - anywhere any Δ subject to personal jurisdiction when the action commences

- Federal question: 28 USC 1391(b): 1. where any Δ resides if all Δs reside in the same state;2. Where a substantial part of the events giving rise to the claim occurred or, if property is the subject matter of the suit, a substantial part of the property is located, or3. Fallback Position: where any Δ may be found, if venue isn’t proper in any other district

State: what county or district is the appropriate place for a trialCommon Locations (vary from state to state):1. Δ’s residence2. Where the COA arose3. Where the Π or Δ does business;

4. If Δ is a non-resident, where Π resides; or5. If the claim concerns land, where the land is located.

WHEN DETERMINED: as of the time the action is filed (not the time when the claim arose)TIMING: Objections to venue must be made in the Δ’s first appearance in most states and in federal courts – either by FRCP 12(b) motion or in the Δ’s answer

REMEDY: Generally to transfer the case to a court w/ proper venue, not to dismiss the case.- State ct can only transfer in-state; federal court not limited by state boundaries

Transfer statutes: 1404 and 1406-Under both of these statutes, the transferee must be a proper venue and must have personal jurisdiction over defendants. Must be independently true without any waiver by defendant.

1404: Transferor is a proper venue. From a proper venue to another proper venue. Statute talks about convenience and interest of justice. Court looks at factors of common sense: transferor says they have jurisdiction but the other court makes more sense because it’s the center of gravity

1406: Transferor is an improper venue and there, the statute says that it may transfer in the interest of justice or the court can dismiss because improper venue is a basis for dismissing the case. Court will usually transfer if it can.

24

Hoffman v. Blaski : transfer only allowed to forum where suit “might have been brought”

Facts: IL resident brought suit in TX against TX corp which transferred the suit back to IL venue even though IL resident could not have initiated the suit there himselfRule: A federal court in which suit was properly commenced is NOT entitled under 1404(a) to transfer a district in which Π could not have properly commenced the suit

Goldlar: held that a court under 1406 that lacks personal jurisdiction and venue can nevertheless transfer case to the proper venue

- BUT the converse is NOT true: Under Hoffman, cannot transfer to a court that lacks personal jurisdiction & is not proper venue

Conditional Dismissal: State court can dismiss a case on the condition that the Δ agrees to jrd in a proper venue elsewhere

Considerations: Π’s initial choice of forum Ease of access to proof: where the witnesses & sources of evidence are most avail; Which state will be more familiar w/ the law to be applied; Whether Π is a resident of the original forum; Whether the current judge & forum would be impartial, et. Enforceability of judgment Docket/Administrative concerns

- These factors must weigh heavily in favor of conditional dismissal or the motion should be denied

Corporate Δ s : considered residents of any judicial district where have min contacts to support personal jrd28 USC 1391(c)- Corporation deemed resident of any district in which it has its PPB, substantial operations, and in any district in the state in which it was incorporated- May reside in some federal districts in a given state w/out residing in all the districts

Bates v. C&S Adjusters

Facts: debtor sued PA collection agency in NY court & asserted jurisdiction was proper b/c their collection notices were forwarded to him in NYRule:Venue is proper in the district in which a debtor resides and to which a collection notice was forwarded. (b/c this is where a substantial part of the events giving rise to the claim arose.

Local vs. Transitory Actions:Local: generally one concerning real property, particularly suit to gain possession of land, foreclose, enforce a lien, or quite title- almost always heard or referred to a court in the judicial district where the land is locatedTransitory: one that does not involve a strictly local site or interest and might theoretically have arisen anywhere and may be tried anywhere under standard venue rules

Reasor-Hill: Rejected Local Action Rule

Facts: insecticide-spraying company suing to collect the debt due for their services from a MO landowner who, in turn, is trying to sue an Arkansas-based insecticide manufacturer for having had his crop ruined by their productRule: In a suit for injuries to land, AK can take jurisdiction even if the land is situated in another state.

25

Forum non coveniens: permits courts to dismiss a case if there is another forum which is so much more convenient for the parties and the courts that the case would more appropriately be tried there.State: Court in one state may dismiss the action w/ the proviso that the Δ consent to jrd in another state (since cts of one state have no power to transfer cases to other states)Federal: Can either dismiss or transfer cases that should be tried elsewhere.

- 28 USC 1404 – case may be transferred only to a district in which 1) to do so is in the interest of justice and 2) in which the suit could have been brought in the first place.

3 Considerations beyond “in the interest of justice”:1. Does personal jurisdiction lie in the transferee district?2. Is it a proper place for venue?3. Was service of process possible in the transferee district?

- May also dismiss when the actions should be prosecuted in a foreign country

Gulf Oil Corp: determine whether there is an alternative forum that could properly hear the caseConsideration of public/private factors bearing on whether court should transfer:

Private Interest Factors: Access to source of proof Availability of compulsory process for attendance of unwilling, and cost of obtaining a willing

witnesses Possibility of view of premises Other practical problems that make trial of a case easy, expeditious, & inexpensive

Public Interest Factors:Administrative DifficultiesJury DutyLocal InterestAppropriateness of having trial of diversity case in forum that is familiar w/ state law governing case

Piper Aircraft v. Reyno

Facts: Scottish heirs of plane crash victims in Scotland tried to sue for wrongful death in American court b/c American courts recognize wrongful death as a COA and are known generally to be more favorable to Πs than the cts in Scotland. (Plane manufactured in PA where suit was brought)Rule: The fat of a substantive law being less favorable to Πs in an alternative forum should not be given conclusive or even substantial weight in applying the doctrine of forum non conveniens

Court doesn’t have power to transfer to foreign jurisdiction, so can only dismiss!- Court might condition dismissal on party seeking to transfer to waive certain defenses such as SOL- *Changed the calculus that went into the gilbert case*

Improper Venue vs. Convenience- When motion concerns improper venue, only Δ or ct can object.

- Motion for Improper venue: 28 USC 1406(a) OR FRCP 12(b)(3)- When motion concerns convenience, Π, Δ, and ct can transfer.

- Motion to Transfer: 28 USC 1404(a)- For transfers b/w federal cts for convenience or for improper venue, the transfer can ONLY be to a district where the action might have been brought originally.

- Transferee jurisdiction would have to satisfy personal jurisdiction, venue, and service of process requirements; Δ cannot waive these requirements (Hoffman v. Blaski)

Applicable law after Change of Venue:- When transfer made for improper venue, the law of the transferor court does not follow the claim - When Diversity case transferred b/w district cts on grounds of convenience, the transferee district must apply the law the transferor district would have applied 28 USC 1404(a)- When federal question case transferred to another circuit, transferee court would be free to consider the law of the transferor court but would not be bound to apply another circuit’s view of federal law.

26

F. Removal

- Only possible from state to federal court- Must look at face of Π’s complaint uness falls w/in narrow exception or complete pre-emption- Determined as of the time the petition to remove is filed

- except diversity which must exist both at the time the action was filed and when petition to remove is filed, unless Π drops a non-diverse party

Requirements for Removal: All of the components of jurisdiction must be met (either diversity or federal question) Only Δs can remove a case (even if Δ files a counterclaim that would invoke fed jrd & satisfy removal

requirements) Δ can only remove if Π would have been able to originally file case in fed ct All Δs must agree to removal No removal if any Δ is a citizen of removal state.

To which federal court will the case be removed ? - the district court of the US for the district & division embracing place where action is pending 28 USC 1441(a)- true regardless of the residence of the parties or where the claim arose; as a result, federal court may hear a case for which it may not have been a proper venue had the case been filed in that court originally

Determining whether case is “removable”; considerations for court:- Π’s pleadings- Δ’s petition to remove (allegations of citizenship, amount in controversy, fraudulent joinder, etc)

Statutes: 1441, 1442, 1446, 1447

28 USC §1441(a): authorizes removal of any action brought in state court that could have been brought originally in federal district court

- Says that diversity must exist at two points in time:When complaint filed in state courtAt time of removal to federal court

1441(b): need complete diversity for removal; if Δ is added who is NOT diverse from Π, no removal is allowed- in diversity cases the action is removable only if no Δ is a citizen of the state in which the action was brought

1441(c): Provides for removal/remand only where the federal question claims are separate & independent from the state law claims w/ which they are joined in the action.

- Only applies in federal question jurisdiction - Can be invoked but possible Constitutional problem b/c under Art III, must arise from same common nucleus of fact which isn’t required under 1441(c)

American Fire & Cas Co v. Finn: cited for applying 1441(c); Rule: a claim may not be removed under 1441(c) unless the claim is separate & independent from one or more otherwise non-removable claims

1442: federal officer sued for acts occurring under color of law in state court can be removed to federal court

Watson v. Phillip Morris Co- Δ claimed acting under FDA b/c of regulations imposed on cigarette manufacturers, but court said mere compliance w/ gov’t regs does NOT permit removal

1446(b): Removal jurisdiction will not always be present at the time the initial complaint is filed- If removal is possible and the Δ files a timely petition of removal, the case MUST be removed to fed ct; It’s NOT w/in the court’s discretion to allow removal or not

27

- petition must be filed w/in 30 days after Δ rec’d the complaint, assuming complaint reveals basis for removal, or after Δ’s receipt of document making the case removable, but in no event longer than 1 year after case was filed in state court- Triggering event is service; complementary copies don’t constitute receipt- Δ must attach all state ct processing pleadings- Must give notice to all parties

1446(d): Δ must file notice of removal in state ct which stops running of state ct action & state ct no longer has jrd over that proceeding

1447(e): Circumstance when after case has been removed to federal court & Π wants to add party who is non-diverse; ct has discretion to:

1. Permit joinder of the non-diverse party; diversity would be destroyed & case would be remanded back to state court

2. Not permit joinder

Artful Pleading Doctrine: allows court to circumvent Π trying to mask fed claim under guise of state claim; ct will look beyond pleadings in complaint

Fraudulent Joinder Doctrine: Applies when Π names non-diverse Δ to defeat diversity- Lenient standard allows Π to join non-diverse parties- must only show a reasonable basis that liability could be imposed under state law

Waiver of the Right to Remove: Permissive counterclaim Forum Selection Clauses

Jurisdictional-cure theory: Caterpillar v. Lewis- Δ removed to fed ct based on diversity & Π said not diverse, but by final judgment the non-diverse party had been eliminated from case.- Supreme Court said that failure to remand for lack of complete diversity is not fatal to the adjudication if, at the time of final judgment, the jurisdictional defect has been cured

Remanding back to state court- Can only be remanded to state court from which case was removedOnce notice of removal is served on Π:

30 days for Π to move to remand on ground other than subject matter jurisdiction (subject matter jurisdiction can be raised longer than 30 days)

Procedural problems w/ notice of removal (ex. one Δ didn’t agree to remove; didn’t attach all lower court pleadings)

2 main circumstances:1. Mandatory remand – if statutory requirement for removal are not satisfied, federal judge must remand the action back to the state court 28 USC 1447(c)

Ex. Diversity case where Δ is a citizen of the state in which the action was commenced2. Discretionary remand – if a federal trial of the case would be jurisdictionally proper, but unwise, federal judge has discretion to remand the case back to the state court.

Ex. Federal claim & supplemental state claim are removed tand the federal claim is dismissed before trial 28 USC 1367(c)

1447(d) – when federal court remands case, not subject to review by app courtException: When through 1443 it IS reviewable (See West Mifflin below)

Borough of West Mifflin v. Lancaster

28

Facts:jurisdictional issue arose when two people who had been kicked out of a shopping mall sued the mall owners & the local police for violations of their civil rightsRule: A district court’s discretion to remand under 1441(c) can pertain only to those state law claims which the district court could decline to hear under 1367

- If Π seeks to join addt’l Δs whose joinder would destroy subject matter jurisdiction, the ct may, as one option, remand the action to state ct. 28 USC 1447(e)

Waiver- Filing a cross-claim against another Δ would constitute waiver to removal- Serving interrogatories, filing an answer, etc doesn’t constitute waiver to removal- Removal by the Δ does NOT constitute waiver of jrd

Objection to Removal- If removal was improper, Π can object to removal any time prior to final judgment under 28 USC 1447(c)- Motion for remand based on a defect in removal procedure must be filed w/in 30 days of the filing of the notice of removal.

1404(a) – if a motion to transfer is made and the court says no, the case just stays there, it doesn’t not have to be dismissed1406 – permits the court to transfer the case to a court in which the case could have been brought rather than dismiss it, if it is in the interest of justice (this will be determined liberally unless you can show bad faith or some other big problem); if the court decides not to transfer, then in MUST dismiss (the dismissal is without prejudice; transferring court must have subject matter juris over case, but does not need personal juris*with prejudice* - cannot be appealed or dealt with any further*without prejudice* - you can continue with the action

The defense of improper venue will be waived if it is not properly raised in a timely fashion.

FORUM NON CONVEINS DOCTRINE – doctrine of convenience; not in effect in the federal system unless other countries are involved because transfer will occur under 1404(a) or 1406; the two-prong test is:

1. you must show the availability of another forum where the case should be heard2. the court will balance public and private factors and the balance must come out in favor of dismissal

when the court is moving to dismiss on this doctrine, it is not unusual for the court to condition the dismissal on something; i.e. waiving a defense of statute of limitations,etc.

*PIPER CASE* - LOOK UP TWO PRONGS THAT THE COURT EMPHIASIZED IN SUMMARY BOOK

Ascertaining the Governing Law

ERIE DOCTRINE- Generally used ONLY in diversity cases- 3 Areas:

1. Rules of Procedure2. Rules of Evidence3. Questions of Common Law

Swift v. Tyson – Overruled by Erie ; interpreted Rules of Decision Act to allow federal court to ignore local & state law and to decide what law to apply; he was obligated to apply NY law, no fed question, no statute, etc dictated that he had to apply anything other than MY law, but the judge disregarded it saying that the RDA only applied when it was local matters

Erie Railroad v. Thompkins – held that a federal court hearing a diversity case should follow the substantive law of the forum state.; this court was saying that a federal court doesn’t have business intruding or

29

disregarding decisions made by state courts so they shouldn’t have the right to overrule state law without a good reason; “the twin aims of Erie”:

1. to assure uniform results in diversity cases regardless of whether the case is in state or fed courts AND discourage forum shopping

2. to avoid the inequitable administration of the law

Facts: Thompkins, a pedestrian who was injured when a bar protruding from an Erie RR car struck him, sued in federal court and alleged that federal common law should govern the actionRule: Federal courts are required to apply the substantive common law of the state in which they sit.

Applies ONLY when there is no controlling federal statutePurpose of the Erie Doctrine: (noted in Hanna v. Plumer)1. Discourage forum-shopping; and2. Avoid inequitable administration of the laws.

CURRENTLY: In Federal Diversity cases:

A. If a procedural issue is covered by a FRCP and a contrary state law, the FRCP controls. (Hanna v. Plumer)

- As long as the FRCP is both Constitutional & comports w/ the Rules Enabling Act by not abridging, enlarging, or modifying any substantive right of any litigant it controls. (No FRCP has ever failed this test)

B. If a procedural issue is not covered by an FRCP, the balancing test from Byrd v. Blue Ridge must be used

- weighing the importance of the state policy, the importance of the federal policy, and the extent to which the outcome of the case will be affected- the greater the effect, the more likely it is that state law will control; is the effect “outcome determinative”?

C. If the issue is substantive, state law controls under Erie.

Case Law:

1. Guaranty Trust Co. v. York : Outcome-Determinative TestFederal courts have to apply state law whenever it might produce a different outcome b/w state and federal courts.; case decided on the principles of equity; gives us the first taste of distinguishing between substantive and procedural issues; for purposes of Erie, if the changing of a fact can affect the outcome of the case, then that fact is substantive

Facts: York sued Guaranty in federal district court in order to avoid an application of state statute of limitations, which would have barred the case in state courtRule: Federal court w/ diversity jurisdiction must apply state procedural rules, such a SOL, if those rules have a substantial effect on the outcome of the litigation

- If the decision on an issue will affect the outcome of the case, it is regarded as a substantive issue on which the federal court must defer to the state court- Court dealt w/ a statute of limitations problem; for purposes of Erie, the SOL is substantive- Modified by Hanna v. Plumer in that the court must now balance the interests and take into acct the goals of Erie

2. Byrd v. Blue Ridge: Balance the Interests- balancing test to determine when federal court should apply state procedural law instead of federal procedural law.- this case rejects a literal application of the outcome determinative test; refinement of the York Outcome Determinitive Test- you’re dealing with two different court systems: federal (focuses on 7th amendment) and state- gives you a 3 part test: “The Byrd Test”

30

1. look to see if the inconsistent state rule is not bound up with state created substantive rights and obligations that are in dispute, but instead relates merely to the mode and enforcement of those rights

2. look for whether the application of state law would frustrate or disrupt one or more important federal policies; in this case they said it would

3. this federal policy that is threatened by the application of this inconsistent state rule, outweighs the importance of applying the state policy

Facts: Byrd sued Blue Ridge for negligence & a factual determination of the status of Byrd’s employment was required in order to determine the appropriate forumRule: Federal courts may apply federal rules, even if state rules are outcome-determinative, if a federal policy in enacting the rules outweighs the state policy.

- State procedural rules are not necessarily controlling even when they are outcome-determinative.- Instead, court is to balance the interests to insure that federal procedural policies are not undermined.- Must balance the importance of the state policy vs. the importance of the federal policy, keeping in mind the extent to which the decision on the issue will determine the outcome of the trial.

i.e. if the chance that using the federal procedural rule will change the outcome is small or the state policy behind the state rule is weak, the stronger federal interest will control

3. Hanna v. Plumer: Twin Aims of Erie; REA model - 28 USC 2072; congress delegates to the SC the authority to promulgate rules of civil procedure

- held that a valid FRCP controls over an inconsistent state rule or policy, even if results in different outcome; service is accomplished under rule 4- ONLY applies when direct conflict b/w a federal procedural rule and a state rule or w/ state common law policy

Facts: Hanna sued in Mass. district court for negligence following an auto accident, using a substituted service of process rather than in-hand service as required by Mass. statuteRule: FRCP w/in scope of the Rules Enabling Act will control over state outcome-determinative rules.

- Named twin aims of Erie (see above)- If FRCP broad enough to cover issue in dispute, then FRCP is always going to apply **this is big**- you never answer the second prong “no” …. Bc the supreme court has never found a rule of civil procedure to be invalid- Focus not whether state rule is outcome determinative, but whether it would cause forum shopping- IRRELEVANT IF DISCUSSING SUBSTANTIVE LAW; ONLY PROCEDURAL RULES-**when you are confronted with a fact pattern that involves a federal rule of civil procedure, the analysis that you will use will be HANNAH, the two-step process, not the Erie doctrine.**

4. Walker v. Armco RDA thing, like Erie, not Hannah

Facts: Carpenter injured by an alleged faulty nail brought suit in federal court w/in 2 yrs of injury, but failed to serve process w/in the time required by OK statuteRule: Federal rules should not be construed broadly so as to place them in direct conflict w/ state rules, which would require a federal court to apply the federal rule

- Although Rule 3 says action commenced when filed, it was not intended to operate w/ respect to SOL- SOL & tolling of SOL are substantive for Erie purposes

5. Stewart Organization

Facts: Relying on a forum selection clause in their dealership agreement, Δ attempted to transfer case from AL to NY district ctRule: A federal rule, established w/in the limits of the Constitution, prevails over conflicting state law provided the federal rule is sufficiently broad to cover the issue

31

Modified Hanna test – 2 part test for when you have a fedral stature involving procedural questions1. whether the statute is sufficiently broad to control the issue in dispute .. does 1404(a) apply to these circumstances? If yes, then …. 2. whether the statute is a valid exercise of congressional power under the constitution?

- this two prong test is used when you have a procedural question

***FEDERAL COURTS WHO ARE SITTING IN DIVERSITY MUST APPLY THE CONFLICT OF LAW RULES OF THE STATE IN WHICH THEY ARE SITTING***

6. Gasperini

Facts: Journalist loaned transparencies to non-profit and it lost them, and jury awarded 450K in damages. Federal court applied a state law standard in reviewing whether a jury’s verdict was excessive, despite the contrary mandate of the 7th amendmentRule: A state statute governing reexamination of jury awards can be given effect by federal appellate courts w/out violating the 7th Amendment’s reexamination clause

- Fell w/in twin aims of Erie b/c 2 different standards could really yield strikingly different outcomes so court decided in addition to violating those twin aims, the balance of interest weighed in favor of applying state law; federal court would have allowed a much larger recovery than state law

Conflicts of Laws Rules:- a federal court in a diversity case must follow the conflicts of laws rules of the forum state, b/c they are considered substantive in nature (Klaxon v. Stentor Electric)

Rules on Allocating the Burden of proof:- Under Erie, unless there’s a basis for a rule of decision in the Constitution or federal legislation, the federal court in a diversity case must rely on forum state law on issues that are substantive in nature

Rules of Decision Act: provides that in civil cases, federal courts must apply the laws of the several states, except where the Constitution, treaties or statutes of the U.S. shall otherwise require or provide 28 USC 1652; this requires federal courts to apply state law in every case except for when the constitution says otherwise1. what law does a fed court have to apply in a diversity case? (the law of the state where the act occurred will apply)2.

- Interpreted by Erie

Rules Enabling Act: Act of Congress authorizing the Supreme Court to promulgate the FRCP; provided the rules could not abridge, enlarge, or modify any substantive right.

Exceptions to Erie; federal common law is applied in cases:1. Where there is a dispute b/w 2 states;2. Where the U.S. is a party; or3. Where there is a significant federal interest at stake

Pleadings

3 Normal Pleadings in Federal Court:1. COMPLAINT – Π states his COA2. ANSWER – Δ denies any or all of the Π’s allegations and sets forth affirmative Δs, if any. May also include any: counterclaims Δ has against Π; Cross-claims against other Δs; Or cross-complaints (claim against a non-party)3. REPLY – Π answers the Δ’s counterclaim, or non-parties/co-Δs answer cross-complaints or cross-claims.

32

- Note: if Δ’s answer doesn’t contain a counterclaim or if the court does not order it, Π doesn’t have to file a reply.

“Notice” Pleading – required by FRCP and many states – all it requires a pleading to do is provide notice; sufficient if complaint sets forth a “short & plain statement of the claim showing that the pleader is entitled to relief” along w/ a statement of jurisdiction & a demand for judgment.

- Π doesn’t need to state facts supporting his claim.- FRCP 8(a)

Generally, pleadings/motions don’t have to be verified or attested to.- Exception: Motion for TRO under Rule 65

FRCP 8: General Pleading Rule; applies to claims, defenses, and affirmative defenses(a) applies to counterclaim, cross-claim, 3rd party complaint

- Requirements:1. Short plain statement of the grounds upon which the court’s jurisdiction is based (subject matter

jurisdiction)2. Short plain statement of the claim showing pleader is entitled relief3. Demand for judgment & relief

- Can plead in the alternative(b) Defenses & Denials from Δ’s perspective

- Plain, short statement of the nature of defense- Admit or deny allegations

- Denials must be responsive to allegations in complaint (mirror form of Π’s complaint)(c) Affirmative Defenses

- Lists affirmative defenses, but not exclusive list- Doesn’t necessarily deny factual allegations but denies liability under the law- Authorizes court, if defense mislabeled as “affirmative defense” or vice versa, to treat as though properly labeled

(d) Alternative Pleading, Multiple Claims, Equitable Relief

FRCP 11: Signature Requirement: requires that pleadings be signed by the party’s atty or, if party doesn’t have an atty, by the party himself.

Certifies that:1. There’s no improper purpose for the document2. The legal contentions are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law3. The factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and4. The denials of factual contentions are warranted on the evidence or, if specifically so identifies, are reasonably based on a lack of information or belief.

Two ways of Raising Rule 11:1. Opposing party raises question of sanctions, subject to safe harbor provision (see below)2. On court’s own initiative

- Must accord lawyer/party due process; show cause order (order to show cause why sanctions should not be imposed & then court will decide based on that alone or on that & evidentiary hearing)

REMEDY: If atty violates the rule, the court may (discretionary) impose sanctions in the form of a non-monetary order, a monetary penalty to be paid to the court, or reasonable atty’s fees and other expenses to be paid to the other party if imposed on motion and limited to what is sufficient for effective deterrence. FRCP 11(c)(2)

33

- “Safe Harbor” Provision - If offending party w/draws or corrects pleading w/in 21 days of being served the motion seeking sanctions, he will not be sanctioned 11(c)(1)(A)

If a pleading that requires verification is NOT verifies, the other party may move to strike it.Appellate Review of Rule 11: Abuse of Discretion:Erroneous view of law or assessment of evidenceClear error of judgmentHas district court, contrary to law or fact, reached unreasonable result?

THE COMPLAINT

FRCP 10: sets out basic form for a complaint(a) caption of pleading – title of court, file number, parties(b) Numbered paragraphs w/ allegations(c) Documents relevant to COA; attaching documents (ex. K b/w parties)

Formal Elements in a federal court action FRCP 8(a):1. JURISDICTION: A short & plain statement of the grounds on which the court’s jurisdiction depends2. CLAIM: A short & plain statement of the claim showing that the pleader is entitled relief. Need only identify the occurrence from which the claim arose so as to notify the Δ of the essence of the claim3. RELIEF: A demand for judgment for the relief the pleader seeks(These also apply to cross-claims, and 3rd-party claims and counterclaims)

Pleading in the Alternative: allows to plead entirely separate & inconsistent claims

Third-party complaint: complaint Δ files against a non-party when the Δ claims that party may be liable to him for all or part of the Π’s claim against him

Must Π identify which COA he’s pursuing to have a valid complaint under FRCP?No! All FRCP 8(a)(2) requires is a short & plain statement of the facts showing he’s entitled to relief

- Π cannot allege inconsistent versions of the facts supporting his claim, unless he includes in his allegations a reason why he doesn’t know which version is true; however, Π can plead inconsisten legal theories

FRCP 10(b): each COA or claim in a complaint should have its own paragraph, and each paragraph should state only one set of facts or circumstances.

Specificity- FRCP 9: certain types of claims must be pleaded w/ particularity

a. allegations of legal capacity or non-capacity to sue or be suedb. fraud or mistakec. Denial of performance/occurrence of conditions precedentd. Official documents or acts relied on were done in compliance w/ lawe. Existence of judgmentsf. Material places and timesg. Special damages (those not reasonably anticipated for the type of claim asserted)h. Admiralty & Maritime Claims

- Otherwise, Π need only set forth a short & plain statement of the claim indicating she’s entitled to relief.

Leatherman: NO HEIGHTENED PLEADING STANDARD; Notice pleading prevails; courts have no power to impose rigorous pleading requirements outside areas addressed by FRCP or statute.- Federal court may NOT apply a more stringent pleading standard in civil rights cases alleging municipal liability under 42 USC 1983- Lower court erred by requiring a detailed pleading of a civil rights case

34

Swierkiewicz: Employment discrimination complaint was dismissed for failure to allege facts sufficient to state a prima facie case; court said this case was NOT subject to the heightened pleading standard of 9(b)

Rule: A prima facie case is an evidentiary standard for trial, not a rule of pleading

FRCP 54(c): Π can receive an award larger than that in pleadings unless Δ defaults, in which case he will be limited to amt alleged in complaint, plus costs

Bail v. Cunningham : Jury awarded judgment for P in amount higher than he asked for in his prayer for relief

Rule: A claimant is entitled to the amount of relief rendered at trial even if that amount is greater than what was requested in pleadings

THE ANSWER

Two Things MUST be done:1. Respond to the allegations of the complaint2. Raise affirmative defenses

Function: to put at issue to allegations in the Π’s complaint by either denying some or all of them or raising affirmative defenses that are legally sufficient to avoid the effect of the allegations of the complaint.

- can admit, deny, or plead lack of knowledge as to every allegation- can raise defenses by motion or through answer- MUST include any affirmative defenses- FRCP 8(b) and (c)

FRCP 8(c) lists 19 specific affirmative defenses; most important:1. Contributory negligence2. Fraud3. Duress4. Res judicata

5. Statute of Frauds6. Statute of Limitations7. Catch-all: “any other matter constituting an avoidance or affirmative defense”

Ingraham v. US: Air force claimed judgment against them was in excess of statutory limite, but didn’t bring this defense up before judgment

Rule: An affirmative defense will NOT be saved for appeal unless raised at some point during pleading or trial state, before judgment is passed.

If pretrial motion is filed & made, these defenses are waived if you raise other defenses and don’t include these:

1. Personal jurisdiction2. Venue3. Service of Process4. Insufficiency of Service of Process

5 Kinds of Denials:1. General Denial: Denies EVERY material allegation in Π’s complaint (including jurisdiction) 8(b)2. Specific Denial: Denies the allegation of a particular paragraph/averment of the complaint 8(b)3. Qualified Denial: Denies part of an allegation 8(b)4. Denial of Knowledge of the Info: when Δ has insufficient info or knowledge to form a belief as to the truth of an allegation; Has the effect of a full denial & must be done in good faith 8(b)5. Denial based on Info and Belief: good-faith belief that complaint is false, but w/ insufficient first-hand knowledge by Δ to back it up. (judge-made rule based on FRCP 11)

- An allegation that is not technically termed “denied” is deemed admitted, except for allegations of damages (these are deemed at issue even if they aren’t effectively denied.) FRCP 8(d)

35

Zielenski: demonstrates that Δ must be concerned its denials sufficiently inform Π.Rule: A general denial will not be valid if any of the allegations being denied have been admitted by both parties as true.

FRCP 12(a): Δ has 20 days to file an answer in fed ct after being served w/ process unless a different time is prescribed by statute

Exceptions: - If Δ files a 12(b) motion in the time provided for answer, she’ll have 10 days after the motion is denied in which to file her answer. - If the Δ agrees to the Π’s request for waiver of service of the summons, she’ll have 60

days from the date the request for waiver was sent by the Π to file her answerAlso: if Δ’s answer includes a counterclaim, Π must file his answer (called a reply) in 20 days

REMEDY: If Δ doesn’t file in time, failure to plead will be considered a “default” and an admission of the claim against her. Then Δ has one yr after default judgment under FRCP 60(b) to attempt to set it aside

- However, typically will only be set aside if Δ shows a valid excuse (fraud, excusable neglect, or newly discovered evidence) and a meritorious defense to the action

**If you file a MTD on any grounds and don’t include claims of lack of venue, pers juris or process stuff, you are foreclosed from using those defenses**

FRCP 12: Device to attack complaint; raising defects (defenses)12(b) (1) Lack of jurisdiction over subject matter

(2) Lack of jurisdiction over the person(3) Improper Venue(4) Insufficiency of Process(5) Insufficiency of Service of Process(6) Failure to state a claim upon which relief can be granted(7) Failure to join a necessary party under Rule 19

12(h) The following can be raised as late as trial:1. Lack of jurisdiction over subject matter2. Failure to join a necessary party under Rule 193. Failure to state a claim upon which relief can be granted

FRCP 12(b)(6): device by which Δ files motion attacking legal sufficiency of complaintCourt confined to four corners of complaint

- If mention anything outside of complaint, treated as summary judgment under 56All inferences drawn in favor of non-moving party

12(a)(1)(a)(i) – the D has 20 days to file their answer

Twonley: need facts to support plausibility of relief!- - Overturned Conley, which said only need to state elements of a cause but don’t need facts to back it up- Twonley standard: Mere formulaic recitation of elements of a COA will not suffice; need facts to support plausibility of relief

- a 12(b)(6) motion tests the legal sufficiency of the allegations and is confined to the 4 corners of the complaint - a P must state a sufficient quantum of facts that is plausible on its face to state a claim

FRCP 12(f) Motion to Strike: when says something immaterial, scandalous, redundant

FRCP 12(e): motion for a more definite statement – applies where the pleading is so vague and ambiguous that requiring a reply to it would be unreasonable

36

Answering Amended Pleadings: must be answered w/in 10 days under FRCP 15(a) unless the court orders otherwise (or w/in the time remaining for a response to the original pleading, whichever is longer)

GARCIA – 12(b)(6) – failure to state a cause of action- said Garcia’s complaint did not properly allege the element of publication- the court draws all inferences in favor of Mr. Garcia, so they denied the hotel’s MTD- this illustrates a MTD will not be a vehicle to dismiss questions of fact; it will accept the allegations as

true and if they are disputed facts then those allegations will be removed

AMENDING PLEADINGS – RULE 15!! THIS GOVERNS AMENDMENTS; IT PERMITS YOU TO ASK THE COURT, “LET ME MODIFY THIS, LET ME CHANGE THIS, ETC, SO THAT I HAVE A VALID CLAIM”Two Types:

1. As of Right – Party initiating the pleading can amend once as a matter of right (without leave of the court) before a responsive pleading (answer to complaint or reply to counterclaim)to amend

- Π has right to amend under Rule 15 even after Δ files 12(b)(6) b/c NOT a responsive pleading- Δ has 20 days to file their amended answer as of right.

2. PermissiveTwo ways:a. File motion to amed w/ court asking permissionb. Other party consents to the amendment

- An amended pleading completely supercedes the original- Pleadings can be amended at any time, by any party, up to and including trial. FRCP 15(a)

- Permission should be “freely given when justice so requires”- Will only be denied if would actually prejudice other party (& even then court may grant a continuance so the adversary can gather evidence to meet the new evidence)- there’s no time limit on when a complaint can be amended, as long as its before an answer is filed;

also you can only amend it once- Burden is on the party objecting to the amendment to show prejudice or surprise if the leave to amend is granted FRCP 15(b)-If a pleading is one that does not require a response (ex. An answer that doesn’t contain a counterclaim) it can be amended w/in 20 days after it was served w/out the court’s permission

Factors weighing against Right to Amend: How many times amended in past How close to trial Could have amended in past and didn’t

Beeck v. Aquaslide: Δ admitted manuf defective water slide at issue in case, but year later moved court to amend to deny manuf.

Rule: Court does not abuse its discretion by allowing an amendment to an answer which initially admitted responsibility for the manuf of a product at issue but now seeks to deny manuf. if.

On appeal: motion to amend can be made for first time on appeal under 15(b) but app court probably will not consider non-jurisdictional grounds for appeal that weren’t raised at the trial court level.

SUPPLEMENTAL PLEADINGS- allege & serve notice of material facts that have occurred after the original pleading was filed FRCP 15(d)- parties have no right to file supp pleadings, but courts are just as liberal in permitting them as in granting leave to amend pleadings.

Relation Back Doctrine: permits an amended claim asserting new claims or defenses to be deemed filed at the time the original claim was filed (but not, in general, as to new parties)

- Comes into play when the amended claim would be barred by the SOL if it didn’t relate back.

37

- FRCP 15(c): an amended pleading containing a new claim or defense relates back to the date of the original pleading when either:

(c)(1) The state laws that provides the SOL applicable in the case so provides; OR(c)(2) The claim or defense asserted arose out of the conduct, transaction, or occurrence as the

original pleadings

- FRCP 15(c)(3) If 3 conditions are met, a new party CAN be joined even though the statute has run as to him:1) Claim arose from the same transaction/occurrence alleged in the original claim2) New party has rec’d such notice w/in 120 days of filing of complaint, such that he will not be

prejudiced in maintaining a defense on the merits; and3) New party knew or should have known (w/in 120 days) that but for a mistake concerning the

identity of the proper Δ, the action would have been brought against him

Worthington: Π arrested when two policeman were arresting him & wanted to add them after he discovered their identities (SOL had already run)- Court said the amendment did NOT relate back b/c 15(c) requires mistake and there WAS no mistake

in this case; he didn’t know the identities

38

Joinder of Claims & Parties

A. Joinder of Parties

Two Types of Joinder of Parties:1. Compulsory (FRCP 19) – party must be joined, if possible

- Parties subject to compulsory joinder:a. Indispensable partiesb. Necessary parties

- Not subject to supplemental jurisdiction; if a non-party is considered an indispensable party, but his presence in the action would destroy diversity, the action must be dismissed

2. Permissive (FRCP 20) – party may be joinedWhy permitted? Efficiency to avoid crowded courts!

COMPULSORY JOINDER

Bases for Compulsory Joinder:Under FRCP 19(a), an outsider who is deemed indispensable must be joined, if feasible (if subject to process and joinder won’t affect subject matter jurisdiction; i.e. not destroy diversity) when either:

1. COMPLETE RELIEF: His joinder is required in order to give complete relief to the parties2. PREJUDICE: Without him, the proceeding would be substantially prejudicial b/c it would either

a. impede the non-party’s ability to protect his interest in later proceedings; ORb. expose the existing parties to the risk of multiple liability or inconsistent obligations

- If either of these is satisfied and the non-party can be joined, he must be joined. If he can’t, the court must determine if, in equity & good conscience, the action should be dismissed. In making the determination, it will weigh four factors under FRCP 19(b) (See below)- If a necessary party CAN be served, you don’t have to analyze whether he’s indispensable

3 Step Process:1. Is person needed for adjudication under 19(a); is he necessary?2. If necessary, then is joinder feasible; is he subject to personal jurisdiction & venue, or would joinder

destroy diversity?3. If not feasible, then court decides if under equity & good conscience action should proceed w/out

person or be dismissed b/c he is indispensable?

4 Factors to determine whether someone is an indispensable party when joinder NOT feasible (FRCP 19(b)):1. Prejudice: Extent to which absence of a party will be prejudicial to him or to existing parties2. Framing the Judgment: Extent to which (by shaping relief, protective measures in the judgment, etc) prejudice may be lessened or avoided (e.g. by giving money damages in lieu of specific performance)3. Adequate Remedy: Whether an adequate remedy may be rendered in the outsider’s absence4. Result of Dismissal: Whether Π will have an adequate remedy if the action is dismissed. (i.e. court should consider whether the Π could sue effectively in another forum where better joinder is possible)

Joint Tortfeasors: NOT subject to compulsory joinder

Dismissal - Dismissal due to inability to join an indispensable party is NOT adjudication on the merits. Has no res judicata effect, and the Π may bring a new suit on the same claim.

12(b)(7): Motion to Dismiss for Failure to Join Indispensable PartyCourt’s Options:

Let person join & deny motion Decide joinder not necessary, deny motion, & let case proceed Decide joinder necessary & dismiss case

39

Provident Tradesmen: Where it is not feasible to join a necessary party, the action must be dismissed only if the party is indispensable

Non-parties generally regarded as subject to compulsory joinder:- Patent/ copyright owner when exclusive licensee of patent/copyright brings infringement claim against 3rd party- All co-owners of property when one co-owner seeks to quiet title in or partition the property- Lessee when lessor sues sublessee to force forfeiture of main lease due to sublessee’s acts- Partial assignees of contract rights- All beneficiaries of a trust when action is to fix shares in trust- All partners in a suit by one partner to dissolve the partnership- All owners of property in a suit to establish an adverse interest in the property- Corporation in a shareholder derivative suit

Because Compulsory Joinder is NOT covered by Supplemental Jurisdiction, make sure to consider:1. SUBJECT MATTER JURISDICTION: Will joinder destroy Diversity?2. AMOUNT IN CONTROVERSY: In diversity case, is the claim more or less than $75K?3. PERSONAL JURISDICTION: The outsider in a diversity cause is outside the court’s personal jurisdiction b/c the long arm statute of the jurisdiction doesn’t cover him4. VENUE: Jurisdiction in the district court is based on common residence in the same state and the non-party doesn’t live in that state. If the non-party objects to venue, the case must be dismissed.

Objecting to non-joinder of Indispensable Parties:The objection should be made:

1. In pre-answer motion;2. In a demurrer (in state court); or3. In the answer itself, as a defense of “non-joinder”

- However, an objection for non-joinder may be raised at any time until judgment

PERMISSIVE JOINDERApplies to both Πs and Δs

Parties who may be permissively joined (2 part test under FRCP 20(a)):1. Single Transaction: party’s rights or liabilities must stem from the same transaction or occurrence

-most courts use a “logical relation” test2. Common Question: There must be a common question of law or fact that ties all Πs (or Δs) together

- Must still meet jurisdiction, venue, and process requirements as supp jurisdiction does not apply to permissive joinder of Δs.

FRCP 21 –applies to instances involving Misjoinder & Nonjoinder: can be used when party is an improper party - any claim against a party may be proceed against separately- Misjoinder of parties is NOT a ground for dismissal of an action!- Different from 42(b), which applies to claims & issues; Rule 21 results in separate judgments & proceeding; Rule 42(b) results in separate trials but single judgment.

B. Joinder of Claims

FRCP 18: Joinder of Claims & Remedies: (a) Joinder of Claims: party asserting a claim to relief as an original claim, counterclaim, cross-claim, or 3rd-party claim may join, either as independent or as alternative claims, as many claims as the party has against an opposing party

- never required to join claims, but may want to for res judicata

M.K. v. Tenet: FRCP 18 provides for unrestricted joinder of claims against an opposing party

40

- Each claim must independently satisfy the requirements of subject matter jurisdiction, personal jurisdiction, and venue

- jurisdiction: not usually a problem in diversity, but in federal question claims, if claim joined doesn’t involve a federal question, must be part of the same transaction/occurrence as the claim upon which the action is based to merit pendent jurisdiction- personal jurisdiction: normally only a problem when a long-arm provision mandates service for one claim but not for the joined claim- venue: normally not problem

(b) Joinder of Remedies: whenever a claim is cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action

FRCP 42(b): court can, at its discretion, order separate trials for any cross-claim, counterclaim, or olther claims/issues to avoid expense, delay, or prejudice

C. Supplemental Jurisdiction

Provides means by which additional parties/claims may be brought into a federal case w/out independently satisfying the requirements of subject matter jurisdiction once there is a controversy asserted by any party as to which there is subject matter jurisdiction

28 USC 1367 – combines both ancillary & pendent jurisdiction- Ancillary – gave Δs a chance to protect themselves by asserting claims against & bringing in extra parties (ex. Compulsory counterclaims & Impleaders)- Pendent – allowed Πs in fq cases to assert state-created claims against Δ even when they would not have independently satisfied fed jrd requirements (used when parties were citizens of same state)- Required that there be close similarity b/w the state & federal claims (must derive from a common nucleus of operative fact & be so closely related that Π would be expected to try all in one proceeding)

Supplemental jurisdiction over claims in a diversity case:- Generally those situation in which ancillary jurisdiction was available & the party obtaining supplemental jurisdiction over another party is in a defensive posture:

1. Compulsory counterclaims (not permissive)2. Joinder of additional parties to compulsory counterclaims3. Cross-claims4. Impleader of 3rd party Δs but only as to claims by & against 3rd party Πs and by and against 3rd party Δs, but not claims by original Π against 3rd party Δs5. Multiple Πs joined under Rule 20’s permissive joinder provisions6. Class action Πs

Multi-Party/Multi-Claim Litigation

A. Counterclaims

Claim by Δ against Π asserting new matter entitling Δ to affirmative relief; Δ becomes the claimant w/ respect to the counterclaim.- must be raised in the pleadings

2 Types:1. Compulsory – arising form the same T/O as the subject matter of the original claim FRCP 13(a)

Exceptions:a. Claims requiring the presence of addt’l parties over whom the court has no jurisdiction (FRCP 13(a)(1)) b. claims which are in rem or quasi in rem (FRCP 13(a)(2))c. claims which are the subject of another pending action when the action in question is filed 13(a)

41

d. claims which would impose undue hardship (ex. Δ unaware of compulsory counterclaim at time)e. claim which are still avail to Δ if Π’s original claim is dismissed before Δ has oppty to file answer

Jurisdiction: don’t need independent jurisdictional grounds, b/c covered by supplemental jurisdictionWaiver: If not raise, usually waived, but if not alleged in Δ’s answer, court may grant leave to amend 13(f) (rule 15 now covers)

Heyward: a counterclaim is compulsory if it has some logical relationship to the opposing party’s claim

2. Permissive –any claim against opposing party that is not compulsory because it does NOT relate to the transaction or occurrence which forms the basis of the opposing party’s claim FRCP 13(b)

Jurisdiction: Require independent subject matter jurisdictionWaiver: Are not waived if not asserted

Tests for “Arising from the same T/O”1. Are the claims “logically related”? (“But For” Test: if the counterclaim would not have arisen but for the events that created the main claim, court will be more likely to find the two are logically related)2. Are the issues of fact & law raised by claim & counterclaim largely the same? 3. Common Evidence Rule: will substantially the same evidence support/refute the claim & the counterclaim (evidence would have to be presented twice if claims are not joined; wasteful & inefficient)4. Would res judicata bar a subsequent suit on Δ’s claim absent the compulsory counterclaim rule?

- Failure to plead or defend a counterclaim may result in a default judgment FRCP 55(d)

B. Cross-Claims

FRCP 13(g) Claim against a co-party

SCOPE: must relate to the same T/O as the original claim or counterclaim or relate to the same property- Test is whether there is a logical relationship b/w the cross-claim & the original claim or counterclaim.

LASA: a cross-claim is valid as long as it bears some logical relationship w/ the T/O that is the subject matter of the original action or counterclaim.

RELIEF: May seek affirmative relief in XC, but can’t use merely to deny liabilityPERMISSIVE: are always permissive, never compulsorySUPPLEMENTAL JURISDICTION: covered by supplemental jurisdiction, so need not meet independent jurisdictional requirements

Discretionary: court has discretion to decide whether XC would avoid multiple lawsuits and resolve an entire controversy w/ the fewest procedural steps possible. If these objectives are not met, court may require that the claim be tried separately

C. Impleader

FRCP 14 Allows Δ (or Π against whom a counterclaim is asserted) to bring into an action an outsider who is, or may be, liable for all or some of the Π’s claim against the Δ. - Never mandatory; always at the option of the Δ- Court doesn’t have to hear an impleader; may require that it be tried separately- Cannot use Rule 14 to bring in party to take place of Δ; other party must be liable to Δ!

Jeub v. B/G Foods: Δ who was sued by Π for serving contaminated ham obtained order impleading ham manufacturer and court said:

Rule: a part may implead a TPΔ for indemnity even where the state law procedure does not recognize indemnity claims before the party pays more than its share of the loss.

42

4 Circumstances in which especially appropriate:1. Indemnity2. Subrogation (One person’s succession to the rights of another)3. Contribution4. Breach of Warranty

- The right to any of these is a question of substantive law, so under Erie, state law must allow the 3rd party to be impleaded

- Accomplished by a “3rd-party complaint” served on the outsider.- Impleaded Δ - “3rd party Δ”- Party who impleaded – “3rd-party Π“

JURISDICTION: covered by supplemental jurisdiction; however, court still requires personal jurisdiction over 3rd-party Δ

PROCEDURE: Δ doesn’t require court’s permission to implead if files 3rd party Impleader complaint w/in 14 days after serves original answer

- If after 14 days, has to make motion to implead upon notice to all existing parties & court will consider: Whether Δ is likely to prevail w/ or w/out the impleaded Δ Whether Δ deliberately delayed filing TP complaint Whether prejudice to Π will result Whether impleader will unduly delay trial Whether TP complaint states claim for which relief may be granted

- Service: “Bulge Rule” (4(k)(1)(B): service of parties impleaded under Rule 14 or 19 can be served at a place w/in a judicial district of US as long as not more than 100 miles from place from which summons issues

Note: Supplemental jurisdiction doest not cover Π’s claims directly brings against 3rd-party Δs - Π can only bring claim directly against 3rd party Δ when the claim independently satisfies federal jurisdiction requirements and relates to the transaction or occurrence of the main claim.

3rd-party Δ’s claims against original Π: must arise out of the same T/O that’s the subject of the original Π’s claim against the original Δ.

- 14(a) does NOT provide for a counterclaim by 3rd party Δs against original Π unless and until the original Π has asserted a claim against him. Until then, his remedy is to assert a claim against original Π.

FRCP 18(a) – once Δ impleads 3rd-party Δ, may join to his impleader ANY other claims he has against the impleaded party, even if they are unrelated to the main claim.

D. Intervention

FRCP 24 - Allows certain people who were not initially in a lawsuit to join in on their own initiative; voluntary!!!

2 Types in Federal Court:

1. As of Right – does not require the court’s permissionTwo Circumstances (FRCP 24(a))

24(a)(1): When a federal statute so provides; OR24(a)(2): When the outsider satisfies the following 3 criteria:

1) Subject matter interest: has an interest concerning the property or transaction that is the subject matter of the case2) Impacted Interest: so situated that disposition of the action may impair his ability to protect his interest3) Inadequate Representation: present parties do NOT adequately represent his interests

43

2. Permissive – requires court’s permission FRCP 24(b); discretionaryCircumstances:a. Whenever the applicant’s claim or defense & the main action have a question of law or fact in commonb. whenever a federal statute confers a conditional right to intervene

NOTE: a necessary party under FRCP 19(a) also would be an intervenor as of right under FRCP 24(a)- If court orders joinder, he’s a necessary party, if the party wants to join, he can intervene.

JURISDICTION: Independent subject matter jurisdiction requirement must be met before a party may intervene in a diversity case, whether the intervention is as of right or permissive

- Ex. No intervenor can have the same citizenship as any opposing party

Timeliness: should be timely, but court will rarely deny intervention as of right b/c of tardinessSmuck: 3rd parties may intervene after a judgment on the merits, provided the conditions in FRCP 24(a) are met

Appealability: order granting intervention as of right is NOT a final order, so not appealable; order denying intervention as of right is appealable.

E. Interpleader Device for avoiding multiple liability & litigation; permits someone against whom conflicting claims for the same relief or property are asserted to join all the adverse claimants in one action – and let them fight it out amongst themselves to determine who, if any is entitled to the debt/property- Party who holds the property need NOT admit that he’s liable to anyone.

Types of Federal Interpleader:1. Statutory Interpleader: 28 USC 1335

Requirements:a. $500 minimum: the debt, instrument, or property must be valued at at least $500.;b. Minimal Diversity: needs to be diversity only b/w any two claimants (even in federal question case);c. Deposit: the stake must be deposited w/ the court

Benefits:a. Venue: proper in any district where any claimant is located 28 USC 1397b. Service of Process: nationwide service 28 USC 2361c. Relaxed Diversity Jurisdiction Requirements

2. Rule Interpleader: FRCP 22- Applies normal jurisdiction requirements- Deposit not required, but court may order it- Proceeded under if can’t proceed under Statutory Interpleader (ex. All claimants are from the same state)

Discovery, Pretrial Conference, Pretrial Motions

A. Scope of Discovery

PRE-COMPLAINT DISCOVERY:

FRCP 27: Depositions before action or pending appeal- permits perspective litigants access to discovery methods, primarily depositions, if needed to prevent a failure or delay of justice- Not given liberal reading & request must be verified petition (sworn to document)- NOT available once suit is filed!

44

Two Scenarios:1. Permitted: Where evidence of anticipated suit at risk of being lost (ex. someone who’s testimony

important in danger of dying soon)2. NOT permitted: When Π has a claim but needs facts to form the complaint

In Re Petition of Sheila Roberts Ford: Rule 27 case:Pre-complaint discovery may NOT be used to gather evidentiary support necessary to file a complaint.

Parts of Rule 27 Petition:1. Petitioner expects to be party to an action cognizable in court of US, but presently unable to bring it

of cause it to be brought2. Subject matter of expected action & petitioner’s interest therein3. Facts petitioner desires to establish by proposed testimony & reasons for desiring to perpetuate it4. Names or a description of persons expected to be adverse parties & their addresses so far as

known5. Names & Addresses of persons to be examined & substance of the testimony expected to elicit

from each, and ask for an order authorizing petitioner to take depositions of the persons to be examined named in the petitions

DISCOVERY AFTER FILING OF COMPLAINT:

Goals:1. Give parties equal access to all data, to enable cases to be adjudicated on their merits2. Determine issues that are actually in dispute3. Preserve evidence that may be unavailable at trial (ex. Testimony of terminally ill witness who may die before trial)4. Obtain info about addt’l evidence & obtain leads to new evidence5. Facilitate required disclosure by each party under FRCP 26(a)

FRCP 26(b) Discovery Scope & LImits: covers anything relevant to the action’s subject matter that is not privileged, including info leading to admissible evidence

- If a matter is very private & sensitive, judge must balance the discovering party’s need for the info w/ the discoveree’s privacy interests

Rules on Common SituationsAs general rule, all non-privileged info leading to admissible evidence is discoverable:

45

DISOVERABLE: Names of eyewitnesses Info on people who’ve talked to or seen

eyewitnesses Hearsay Facts opponent intends to prove Facts to impeach opponent’s witnesses Existence & extent of insurance

coverage Facts & Opinions of testifying experts

NOT DISOVERABLE: Trial Tactics (ex. Order of

testimony) Work Product, including opinions of

non-testifying experts Privileged info Info not relevant to the litigation

FRCP 26(d) Timing & Sequence of Discovery: limits time before which discovery can take place before suit

FRCP 26(f) Conference of Parties’ Planning for Discovery- Required to meet/confer to plan discovery & prep case management report- MUST be held no later than 21 days before a scheduling conference is held or scheduling order due under 16(b)

FRCP 16: Pretrial ConferencesHelps shape contours of case for efficiency; designed to force parties into settlement- Can be held at any time- 16(b) Scheduling order to be issued w/in 120 days of filing complaint- 16(f) Scheduling order sanctions

Scheduling Order Topics: Timing of automatic disclosures Scope of discovery Schedule of Discovery Privilege Issues Changes to otherwise uniform rule Any other matter to which parties agree Must be submitted w/in 14 days of the parties meeting

- Good faith conferral

FRCP 26(g) Signing of Disclosures, Discovery Requests, Responses, and Objections

Initial Disclosure FRCP 26(a)(1): must be made w/in 14 days after Rule 26(f) Conference– requires automatic disclosure of certain basic info about the action; must be turned over w/out a request from the opposing party

What must be disclosed in initial disclosure:1. Identity of witnesses likely to have discoverable info that may be used to support claims/defenses unless solely for impeachment2. Copy or at least a description by category & location of electronically stored info, documents & tangible things in possession or control of party which may be used to support claims/defenses unless solely for impeachment3. A computation of damages claimed by the disclosing party, complete w/ supporting info & documents that aren’t privileged4. A copy of, or the right to inspect, any insurance policy that may help pay a judgment in the case

Expert Disclosure 26(a)(2)- must furnish a list identifying each expert who will be testifying- must disclose info about the experts at the time set by court order, but at least 90 days prior to the trial date

What must be disclosed in the expert disclosure (assuming is a testifying expert): 26(b)1. Written report of all opinions to be expressed & basis/reasons therefore2. Data considered by expert in forming her opinion3. Any exhibits to be used by the witness4. Qualifications of the expert, including all publications over the last 10 yrs5. Compensation paid to the witness6. List of other cases in which witness testified in the previous 4 yrs.

Pretrial Disclosure of Non-Expert Witnesses & Exhibits FRCP 26(a)(3): at least 30 days prior to trial What must be disclosed in the pretrial disclosure?1. All Witnesses who will be or may testify2. All witnesses who will testify via deposition, together w/ each document to be introduced3. List of all exhibits to be offered in the trial

- List of witnesses must separately identify those whom the party “expects to call” and those whom the party “may call if the need arises”- Opposing party has 14 days to respond w/ objections

Deposing Experts: FRCP 26(b)(4)If testifying: Adverse party may depose testifying experts at any time after expert has provided the written

report that is the subject of mandatory disclosure; must pay expert reasonable fee for his time in preparing for and attending deposition

If non-witness: Adverse party can almost NEVER depose a non-witness expert, unless it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means

Supplementing Disclosures FRCP 26(e) **IMPORTANT**- All material that is the subject of disclosure must be updated at appropriate intervals if the correct info has not otherwise been made avail during the discovery process or in writing 26(e)(1)- Any info or opinions disclosed by experts must be updated by the time of pretrial disclosures- Any material that was the subject of written discovery devices must be seasonably updated if the info has not otherwise been made avail during the discovery process or in writing 26(e)(2)

When is a Δ ’s financial resources discoverable? 1. When Π seeks punitive damages2. There is insurance coverage for any part of Π’s potential recovery3. In suits for fraud

FRCP 26(c) Protective Orders- In general, good cause must be shown by the protective order; Such causes include:

Invasion of Privacy Protection of business/trade secrets Unnecessary inconvenience of place chosen for deposition Unreasonable conduct of deposition (annoyance, embarrassment, oppression) FRCP 30(d) Deposition Unnecessary (weigh importance to case vs. burden on other side Burdensome interrogatories (unnecessarily numerous, costly to answer, vague)

Actions Court can Take: Not allow discovery Allow, but limit deposition time & circumstance Restrict method of discovery Limit Scope of discovery Limit presence of people or # of people at depo

Zublake : Multifactor test:1. Extent to which the request is specifically tailored to discover relevant info2. Availability of such info from other sources3. Total cost of production, compared to the amount in controversy4. Total cost of production, compared to the resources available to each party5. Relative ability of each party to control costs and its incentive to do so6. Importance of the issues at stake in the litigation7. Relative benefits to the parties of obtaining the info

Appealability: Court orders concerning discovery are NOT final judgments, so they are not appealable in most states.

- Federal Rule: If the discovery motion raises an important question concerning a discovery rule, trial court may certify the question to an app court, but only if the jurisdiction allows certification on this basis- Note: a final judgment can be reversed on appeal on the ground the trial court failed to compel effective disclosure, but unlikely if the ruling on discovery did not actually affect the outcome.

FRCP 36(a): Discovery is permissible as to matters relating to “the application of law to fact” or as to the genuineness of documents described in the request for admissions

B. Major Discovery Devices

1. Oral depositions2. Written Depositions3. Interrogatories

4. Documents/Property Discovery5. Physical Exams6. Admissions

FRCP 30 Oral Depositions :most powerful discovery device due to spontaneity- Each side is limited to 10- May be taken at any stage of a pending action by giving other party reasonable notice (10 Days in MD Fla Rule 3.02)

- Notice of Depo: who being deposed, time, date, place, & method of recording (serve on all parties)- Can include Rule 34 request for production, but then must give 30 days notice instead of local rule

- Non-party: usually subpoenaed under FRCP 45 to compel attendance; a party need not be subpoenaed. If he fails to heed the notice, the court can compel him to attend or impose sanctions

- Subpoena must be served at any place 100 miles w/in location of depotion, hearing, trial, etc.

- No person or entity can be deposed more than once w/out special permission of the court 30(a)(2)(B)- No person’s deposition may last more than one day of 7 hrs, unless court orders or parties agree otherwise FRCP 30(h)(2)(A)

Objecting at Depo: If don’t raise at Depo, waived for trial Objections as to form of questions NEED to be made at Depos Objections as to substantive/evidentiary grounds do NOT need to be made at Depos

Emergency Protective Order – can move for order where case filed or depo being taken (30(d)(4))

Deposition on Written Questions: Discovering party writes out a series of questions in advance & gives them to a court office, who reads them to the witness & records the answers FRCP 31

How may depositions be used at trial?1. Impeachment of the deponent when she testifies as a witness2. Substantive proof of material facts3. Any purpose conceived by adversary4. Circumstances in which the deponent is unavailable at trial 32(a)(3)

FRCP 33 Interrogatories : lists of written questions that one party gives to another party, who must supply written responses, under oath, w/in 30 days. FRCP 33(a)

- May be served any time w/out a court order under FRCP- Cannot be used against non-parties- Limit: 25 questions per each opposing party, unless the court directs otherwise

Two Types:1. Idenfication2. Contention – to define & clarify scope of legal claim (“do you contend that…”)

- Corporations: interrogatories may be answered by any officer or agent the corp. party delegates 33(a)- Refusal to answer: objections to a question must be signed by the party’s atty. If party refuses to answer a question, party requesting the answer must seek a court order forcing it to do so.- Answers can be used against a party at trial- Are NOT admissions; could change answers on the stand

*define identify and identity – there’s a difference*

** rule 33 and all other discovery rules have got to be measured by rule 26**

*interrogatory responses must be sworn too – this a distinct feature of them*

FRCP 34 Document Production Requests (and other tangible property)

- No numerical limit!Parties vs. Non-parties

Parties: When real or personal property is w/in the custody/control of another party, and disclosure could lead to admissible evidence, requesting party may:

- Inspect and copy any document; and- Inspect any property, real or personal

- Party need not demonstrate good cause for his request; requires only notice designating items sought & no court order is necessary

Non-Parties: when real or personal property is w/in the custody/control of a non-party, the non-party cannot be made the subject of a FRCP 34 request to produce. Examining party must instead serve a subpoena under FRCP 45 ordering non-party to bring designated items to the deposition or to allow inspectionJust like other discovery rules, this is subject to the limitations of rule 26Generally, a party has a duty to produce those documents for the other party in the form that they are usually kept; i.e. in order, or in a folder, etc.Those documents must be within the other party’s custody, control, or possessionYou may request that the other party pay for the document production, but usually that’s not done34b2e34cWhen a request is sent out, the other party has 30 days to respond, whether that be producing the documents, or denying to do so.

FRCP 35 Physical and Psychiatric Examinations - Requires motion demonstrating good cause & need before can take place (must show the info cannot be acquired in any other way & that the mental or physical condition of the person to be examined is in controversy- ONLY parties may be subject to orders for examinations 35(a)- If party examined requests report or deposes physician, waive privilege for any other suit involving same injuries as present suit

FRCP 36 Requests for Admission - No numerical limit!- Can be served on any party, whether adverse or not, but not non-parties- Scope: may be requested as to statements or opinions of fact or the application of law to fact- If a party is served w/ a request for admission & does NOT respond, the matter is taken as admitted

Corporations: FRCP 30(b)(6): when a corporation (or similar organization, e.g. partnership, gov’t body, etc) is a party, discovering party need not identify the individual whose info is needed; need only describe w/ reasonable particularity the matters on which examination is requested. Corp must then designate a witness to act for it & that witness’ answers will bind the corp.

FRCP 37: Failure to Make or Cooperate in Discovery: Sanctions- 37(a)(2)(B) – Good Faith Conferral- MD Fla Good Faith Conferral 3.01g

*You have to confer with the other party BEFORE you move to compel**an evasive answer to a discovery request is the equivalent of no answer**you cannot defend against a motion for sanctions, on the ground that the discovery was objectionable; the proper response is to object and say that it’s vague, etc.*

*exception to two step process – when a party fails to respond to discovery, etc. the court has the authority to immediately issue sanctions*Two step Process after Good Faith Conferral:

1. File Rule 37 Motions to Compel, then Opposing counsel files motion in response

2. If moving party wins motion & opposing counsel doesn’t cooperate, moving party can move for sanctions under 37(a)(4)(A)

Awarding of Costs: 3 options:1. If moving party prevails, court has ability to make other party pay for production of motion to compel2. If responding party prevails, court has ability to make moving party pay3. Court can apportion coses

37 (b): Failure to Comply w/ Order(b)(1): Failure to comply w/ order to disclose can be viewed as contempt(b)(2): Sactions by Court in which action pending

- Judge can say noncompliance sufficient to allow him to deem facts are admitted- Court can enter order prohibiting party from supporting/opposing particular claim/defense- Court can enter order striking out pleadings/parts thereof, or staying further proceedings until order or

obeyed, or dismissing action or proceeding or any part thereof, or rendering default judgment against disobedient party

- In Lieu thereof, can order to pay fees

37(f): Electronically Stored InfoAbsent exceptional circumstances, court may not impose sanction for failing to provide electronically stored info lost in the routine, good faith course of computer/electronic info system operation

28 USC 1967: court can sanction parties who make proceedings baselessly take longer

C. Privileges & Immunities

FRCP 26

Privileged – evidentiary material that is protected against disclosure at trial under some overriding public policyIncludes: Atty-client privilege, spousal privilege, priest-penitent privilege, privilege against self-incrimination, etc.FRCP don’t specifically recognize any privileges, except those guaranteed under the Constitution; federal courts must look to the state law supplying the rule of decision to determine if and when a privilege applies

Upjohn: scope of atty/client privilege during corporate internal investigation (has NOT been adopted by majority of states)

Facts: IRS sought to obtain info about confidential communications b/w Upjohn’s counsel & employeesRule: Atty-client privilege may protect ALL communication b/w corp employees & counsel, & work-product exemption for oral statements can ONLY be overcome by a strong showing of necessity & unavailability

- Court rejected “control group test” b/c said frustrates the purpose of the privilege by discouraging the communication of relevant info be ees of the client to attorneys seeking to render legal advice to the client corporation (Control Group Test – restricted application of privilege to persons w/in the control group (brains of the corporation, i.e. CEO, CFO, upper-level management)- Factors:

1. Interviews conducted @ direction of corporate counsel2. Communications made TO counsel3. Info from ees was not available from control group4. Communications b/w lawyers & ees was in scope of the ee’s duties 5. Ees were aware being questioned so that corp could secure legal advice

* Only controls in federal question jurisdiction questions; may not apply in diversity cases b/c courts look to state law to decide privilege in diversity actions

FRCP 26(b)(5): Privilege Log Requirements:Brief description of doc & summary of contentsDate of DocPersons who prepared DocPersons to whom doc was directedPersons for whom doc was prepared

- Must be specific enough to allow court/opposing counsel determine if privilege applicable- If don’t make log, at risk of losing privilege

Work Product – material produced on behalf of a party in anticipation of litigation, either by lawyers, parties, or their agents *this is far broader than attorney client privilege*

- Covers materials of attorneys, consultants, sureties, indemnitors, insurers, and agents prepared in anticipation of litigation- Info gathered during lawsuit doesn’t fall w/in this- Burden: party asserting must show that it is work productMay be given qualified or absolute immunity FRCP 26(b)(3)

- Absolute immunity is recognized for documents reflecting the subjective thought processes (legal theories, opinions, etc) of a party’s lawyer or other representative. - Qualified immunity: accorded to all other documents prepared for litigation purposes by either the party or his representative

- may be overcome by a showing that the other side has a substantial need for the materials and cannot get it in any other way (consider the finances of party seeking discovery, hostility of witnesses to that party, and cost of obtaining the material through other means)

Hickman v. Taylor – leading case on work-product immunity (Rule 26(b) is codification of this case!)Facts: Five crew members died when tug boat sank while trying to tow a car across Delaware river in Philadephia & atty took notes of statements made by survivors w/ an eye toward impending litigation; Hickman sought to obtain the notes from opposing counselRULE: A party is not entitled, without a showing of good cause & substantial hardship, to obtain copies of an opposing atty’s notes & memoranda acquired from interviews w/ witnesses

FRCP 26(b)(4): Expert Witness – distinguishes b/w testifying and non-testifying experts- Testifying Experts:

- Communications b/w an attorney & his testifying expert not protected by work product/privilege- When an expert is an eyewitness, there is no work product protection- Opposing counsel cannot talk w/ experts ex parte

- Non-testifying experts: hired by atty to inform of various facets of case (consultant basically)- Communications b/w attorney & non-testifying experts are NOT discoverable, protected by

work-product- Don’t have to disclose non-expert witness to opposing party

FRCP 26(b)(5): work product can be asserted if atty accidentally submits privileged material to opposing party. Procedure: other party must destroy, sequester, or return

Compare: any statement made by a party to the opposition or to his attorney must be furnished to him despite the usual work-product immunity; doesn’t have to show a substantial need or that he has no other way of getting it.

Doctor/Patient Privilege

- If request a copy of the other party’s examiner’s report, waives his own doctor-patient privilege regarding any examinations for the same condition, done by his own physician 35(a),(b)- Always waived when Π brings an action for personal injuries; Waiver covers all med exams of the injury for which Π seeks recovery

D. Major Pretrial Motions

1. Motion to Dismiss2. Motion for a More Definite Statement3. Motion to Strike

4. Motion for Judgment on the Pleadings5. Motion for Summary Judgment

Note: Motions to dismiss, for judgment on the pleadings, & summary judgment all seek the same think (termination of a case w/out a trial) & so have the same basic requirement: it must appear to court beyond a reasonable doubt that the non-moving party cannot prevail at trial

MOTIONS TO DISMISS

7 Grounds:1. Lack of subject matter jurisdiction2. Lack of personal jurisdiction3. Improper venue4. Insufficient process

5. Insufficient service of process6. Failure to state a claim on which relief can be granted7. Failure to join a necessary party (FRCP 19)

- A motion to dismiss is always at the Δ’s option because he can raise the same challenges in his answer, so does not have to file a separate motion

Motions preserved beyond time for answer or motion:1. Lack of subject matter jurisdiction may be raised at any time, even on appeal2. Failure to state a claim on which relief can be granted may be raised any time before the close of trial3. Failure to join an indispensable party may be raised any time before the close of trial

The other 4 (personal jurisdiction, venue, service, and process) are waived if:1. They aren’t raised in a motion to dismiss (if one is filed) or in a responsive pleading (if a motion to

dismiss isn’t filed); OR2. They aren’t raised by amending a responsive pleading as a matter of course (under FRCP 15(a)); this

means prior to the other party’s filing any further responsive pleading or w/in 20 days, if no further pleading is permitted

As a general rule: these 4 are waived if they aren’t raised during the pleading stage!

FRCP 12(b)(6) Motion to Dismiss for failure to state a claim upon which relief can be granted- Court will grant if it appears beyond doubt that Π can prove no set of facts in support of his claim that would entitle him to relief.- Moving party must show that on the facts as alleged, no recovery is possible under any legal theory- If granted, Π virtually always given oppty to amend complaint w/out prejudice (if dismissed before Δ answers, Π can amend as of right)- If denied, Δ must answer complaint w/in 10 days after motion is denied or face default

12(b) Motions must be decided strictly on the pleadings themselves, not on other contentions or evidence or on disputes relating to the facts.

- If party makes additional submissions (ex. Affidavit on the facts) & the court considers it, the motion is automatically converted into a motion for summary judgment (FRCP 56) & other party will be given oppty to submit affidavits, depositions, answers to interrogatories, or admissions opposing the motion.

MOTION FOR A MORE DEFINITE STATEMENT (FRCP 12(e))- Court should grant when complaint is so vague or ambiguous that Δ cannot reasonable be required to frame a responsive pleading- Can apply to any claim as well as Π’s complaint- If granted: Π must re-plead complaint in a clearer, more detailed manner- If denied: Δ must file an answer (not appealable immediately b/c not final order)

MOTIONS TO STRIKE (FRCP 12(f))- when a party wants to removeany redundant, immaterial, impertinent, or scandalous matter in the other party’s pleadings; oran insufficient defense in the other party’s pleadings

MOTION FOR SUMMARY JUDGMENT (FRCP 56)- Granted when moving party shows there’s

1. no genuine issue of material fact2. judge can enter judgment as a matter of law

Material Fact: Will affect outcome of case Essential to resolution of the legal questions raised in the case

Time LIimit: - Π may make summary judgment motion only after 20 days following the date upon which the action was commenced. 56(b)

- Δ can make one at any time. 56(b)- Must be served at least 10 days before any scheduled hearing

- Question is NOT whether could win at trial, but whether there is a disputed question for trier of fact to decide!- Usually accompanied by affidavits or other materials

- Non-movant almost always must come back w/ some kind of evidentiary material- Opposing party may file opposition affidavits up to day before actual hearing

56(e) – Affidavits- Conclusory affidavits are not sufficient – must be based on personal knowledge- Can move to strike the affidavit- Must set forth facts which would be admissible at trial & must show competent to testify to the matters at hand (such as eye-witness)

56(f) – court is empowered to defer ruling on motion to deny w/out prejudice to allow time to get affidavits together if show why unable to oppose motion at that time

56(g) GOOD FAITH –– if you submit bad faith affidavits that are false, purely calculated for some improper purpose, subject yourself to sanctions & fees under 56(g)

- Judge is free to examine the entire record to the extent it qualifies for admission at trial (Affidavits, admissions, depositions, answers to interrogatories, etc.)

BASIC RULES OF SUMMARY JUDGMENT:1. CREDIBILITY: On summary judgment, judge is NOT permitted to decide credibility, because that would mean there was a dispute of a material fact2. BURDEN: Party moving has the Burden to prove the absence of any dispute of material fact3. INFERENCES: All doubts about facts/ inferences are made in favor of the non-moving party

Partial Summary Judgment: allows court to dispose of certain issues while saving others for trial FRCP 56(d)- Immediately appealable if it makes a final disposition as to some claim or party and it’s certified as final by the court

Appealability: If denied, NOT final judgment, so generally not appealable; if granted, final judgment so reviewable on appeal.

Adickes v. S.H. Kress : Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented

- A white teacher was denied service in a restaurant & arrested & Court said arrest by police could allow jury to find conspiracy

Line of cases: perhaps there’s evidence that you have that demonstrates a genuine issue of material fact, but perhaps its inadmissible ….. cases say otherwise admissible evidence can be submitted in inadmissible form if at a later point you can convert that inadmissible form to an admissible form **1573**

*when the P has a heightened burden of proof at trial, that burden must be met at the summary judgment phase too*

Trilogy illustrating revived use/endorsement of summary judgment:

1. Celotex- Party moving not required touse affidavits when on the face of the other side’s pleading it’s clear that the party cannot meet its burden on one or more essential elements- Must show no disputed material fact and if movant fails to meet burden, nonmovant has no duty to respond w/ affidavits- 2 ways for moving party to meet burden

- present evidence that refutes the Πs evidence- Show Π lacks sufficient evidence to meet burden of proof

- Court stressed that it was not overruling Adickes

2. Anderson v. Liberty Lobby- Libel case against former famous investigative reporter- Liberty Lobby demonstrated that because libel has heightened burden of proof, judge must view evidence through higher evidentiary prism and see if burden met by clear & convincing standard of proof- Introduced 3 additional principles:

- Nonmoving party must provide more than scintilla evidence to show a material DOF exists- If Π heightened burden of proof at trial, must meet at summary judgment stage- Summary judgment improper when calls on state-of-mind issues

3. Matsushita- Japanese firms sued for allegedly price fixing and court said that Matsu. had no rational economic motive to engage in predatory pricing. a case cannot go to jury if p’s can’t produce direct evidence of conspiracy, - Rule: A judge may draw an inference from the absence of a plausible motive upon a motion for summ judgment

Dismissals, Default Judgment, Jury Trial and Verdicts, Post-Trial Motions

A. Dismissals

Voluntary Dismissal

3 Ways to obtain voluntary dismissal w/out prejudice:1. Court will grant any time as of right before an answer or motion for summ judgment is filed by Δ; Π gets only one dismissal as of right on a claim. If re-files claim against Δ, 2nd application for voluntary dismissal will be treated as adjudication on the merits. FRCP 41(a)(1) “Two Dismissal Rule”2. Court may grant upon application of Π at any time even after an answer or summ judgment motion filed by Δ. If Δ has asserted a counterclaim before Π’s motion to dismiss, the motion to dismiss cannot be granted over Δ’s objections unless the counterclaim can remain pending for independent adjudication FRCP 41(a)(2)

- Court can require Π to bear costs of litigation, including Δ’s legal fees as a condition of granting the motion to dismiss w/out prejudice- Court can grant an unlimited # of these as long as there are legitimate reasons & no other party will be prejudiced

3. By agreement of all parties at any time FRCP 41(a)

41(b) – dismissal on Δs motionTwo types:1. Failure to prosecute2. Sanctions

- Operates as adjudication on the merits unless otherwise stated- Not adjudication if

1. Failure to join an indispensable party under Rule 192. Lack of jurisdiction3. Improper venue

2 Dismissal Rule:- 1st is w/out prejudice unless in notice stated otherwise- 2nd dismissal is adjudication on the merits and no longer to re-file

41(a)(2)(A) – when no independent basis for jurisdiction of counter-claim, if Δ objects to Π’s motion to dismiss, court will deny it, b/c the counter-claim is only there under supplemental jurisdiction

MULTI-CLAIM SUITS:- if multi-claim suit but only wants to dismiss one claim voluntarily, move to amend under Rule 15

If court doesn’t retain jurisdiction will have to file another suit in state court unless has independent basis

Involuntary Dismissal **TWO DISMISSAL RULE DOESN’T APPLY**

Common Grounds:1. Π’s failure to prosecute his action in a timely fashion2. Π’s failure to comply w/ court rules or court order (SANCTION)3. Adverse ruling on opponent’s motion to dismiss

- Normally w/ prejudice, unless under FRCP 41(b) “non-merit” dismissal for lack of jurisdiction, improper venue, or failure to join an indispensable party

B. Default Judgment

FRCP 55Two Steps:

1. Entry of Default: entered by clerk when party fails to plead or defend suit2. Entry of Default judgment

55(a): Governs entry of default – default precludes the admission of well pleaded allegations- Distinct from entry judgment: default is a recognition a party is in default for some reason, and is a prerequisite for default judgment.- Deemed to have admitted all well-pleaded allegations- Default is not an appealable order (final order- interlocutory)- Movant must show requirements met through affidavit- Court entering default must have jurisdiction - Mere appearance by party will not necessarily avoid default

55(b)- Judgment by default ay be entered as follows: - default judgment is final, it’s the judgment of the case

(b)(1) By the Clerk- When Π’s claim is for a sum certain or damages that can be computed by calculation quite easily- If Δ has been faulted for failure to appear and is not an infant or incompetent(b)(2) By the Judge- If sum is uncertain & Δ has appeared, judge must enter final default judgment, not clerk

- If actual appearance by Δ- Δ happens to be infant or incompetent- Not for sum certain- When Δ has been defaulted for some other reason (ex. Δ has failed to appear for deposition)

What constitutes an appearance to avoid default?- Filing of answer- Notice of appearance- Letter to court

- If Δ has appeared, Δ under Rule 55 entitled to 3 days prior to hearing on the movant’s application for default judgment- Once judgment by default entered same as any other final judgment – entitled to res judicata

Discretionary: Party not entitled to default as a matter of right

55(c) sets forth various grounds on which can set aside default judgment1. Move for demonstration of good cause2. Courts frequently use 60(d)

B. Jury Trial & Verdicts

Purpose of a Trial: resolve disputes of fact & determine whether the facts as proved satisfy the claimant’s prayer for relief

Principal Functions of a Jury: 1 . Determine the Facts2. Determine whether the facts fall w/in the scope of the judge’s instruction on the law(s) to be applied3. Present the results of its deliberations in a verdict

Beacon Theaters v. Westover : A court may not deny a jury determination of factual issues through a prior determination of equitable claims. - ensures the right to trial by jury first in any case which presents legal issues & in which the parties have not waived trial by jury. After jury determines the legal issues, court may apply equitable principles.

Dairy Queen v. Wood: An action seeking money damages, even if phrased in equitable terms, cannot be considered purely equitable

Curtis: The 7th amend provides a right to jury trial for actions based on a statute that creates legal rights/remedies; - merely b/c both legal relief and injunctive relief against party discriminating doesn’t mean can’t get jury trial

FRCP 38 – governs right to demand jury trial- Codification of 7th amendment; preserves right- 38(b) – Demand (Right to jury trial can be waived so must demand it)

Ways party can demand a trial:1. Draft jury demand and serve upon other parties any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue

OR2. Indorse on first page of answer/complaint “Jury Trial Demanded/Requested”- No later than 10 days after service of pleading directed at that issue

WAIVER: Right to a jury trial can be waived. - Federal actions: if a written demand for a jury trial is not included as part of the pleadings (or made w/in 10 days after filing the last pleading concerning an issue in the pleading on which a jury trial is sought, the right will be waived.- Even if no party makes timely demand for a jury trial, court has the discretion to order a jury trial on some or all issues. 39(b)

Where right to jury trial not expressly provided in statute:Curtis v. Loether : Still a right to JT if 3 conditions met: 1. Action brought in an Art. III court (not a tribunal)2. Remedy sought is one juries traditionally award (e.g. damages)3. Action, though based on statute, is analogous to some common law action

FRCP 47: Jurors

(a) examination of jurors(b) peremptory challenges(c) excuse

Challenges to Jurors:1. Peremptory – challenges against individual jurors w/out cause 47(b)

- Strictly limited in #- Federal: ea. party gets 3, but court can grant more

- If more than one party & have joint interest, challenges may be combined (ex. only 3 b/w 2 Πs or Δs)- Exception: cannot use peremptory to exclude people b/c of race or gender; if using inordinate # of challenges on persons of a certain race or gender, other party can object & require that party using challenges come up w/ a race- or gender-neutral reason (If they can’t come up w/ one, the parties start the jury selection process over again.

2. Challenges for Cause – permits a juror to be dismissed for bais, interest, or prejudice- Unlimited #

Batson: Seminal case on applying equal protection to jury selection- Gave rise to a “Batson Challenge”

Mechanics:- Other party using peremptories in a discriminatory manner- Party claiming improper exercise of peremptory has to make a prima facie showing that based on all the relevant circumstances peremptory being used unlawfully- Then other party must come forward w/ a neutral/rational reason for peremptory (easy burden)

Edmonson: why important: says Batson is applicable in a civil context

Jeb v. Ala.: Supreme Court said that litigants cannot strike potential jurors solely on the basis of gender & all persons have the right not to be excluded summarily b/c of discriminatory and stereotypical presumptions that reflect & reinforce patterns of historical discrimination.

28 USC 1861: Jury Service & Selection Act- Certain people excluded

- Someone caring for someone w/ grave illness- Emergency Personnel- Armed Forces

FRCP 48 – Number of Jurors; Participation in Verdict- In Federal court, cannot have fewer than 6 or more than 12 jurors

- Exception: the parties can stipulate to fewer than 6 jurors- Unless parties stipulate:

1. The verdict shall be unanimous; and2. No verdict shall be taken from a jury reduced in size to fewer than six members

ALTERNATIVE JURORS:In Federal court, no alternative jurorsIn state court, alternative jurors incase someone removed b/c of illness, for cause, etc.

Backstriking:- will allow you to go back in the line of jurors to someone you passed over to disallow them to sit on the jury

C. Post-Trial Motions

JUDGMENT AS A MATTER OF LAW - FRCP 50- Encompasses Directed Verdict & JNOV- Reasonable people could not reach different conclusions

- Ultimately about the sufficiency of evidence; legal question, not a factual questionThis rule only applies to jury trials, it does not apply to a bench trial; the standard used in these cases is essentially the same as a MSJ

JMOL before the Verdict (Directed Verdict) FRCP 50(a)- Stops case from going to the jury- Moving party must show that there is no legally sufficient evidentiary basis for a reasonable jury to find for the other side on any issue for which she bears the burden of production- Can be brought:

by Δ at the close of Π’s evidence; or by either party once all evidence is submitted

Appealability: If granted: results in entry of final judgment, so it’s immediately appealableIf denied: decision is interlocutory and not final, so not appealable until there’s a

judgment on the merits.

- If appealed & reversed, case must be re-tried

Renewed JMOL after the Verdict (JNOV) 50(b) standard is the same as 50a, its just the timing that’s different- Can ONLY succeed if the moving party has previously made a directed verdict or JMOL motion before verdict- 28 Days to move for RJMOL after verdict- Must show there is no legally sufficient evidentiary basis on which a jury could reasonably find as it did

Appealability:appealable whether granted or denied because both are final- If appealed & reversed, the jury verdict will be reinstated

Rule 50(d)

Burdens:1. Clear & Convincing Evidence – used in some cases as a policy matter.

- Ex. Fraud2. Preponderance of the Evidence – majority of the evidence3. Beyond a reasonable doubt – used in criminal trials

NEW TRIAL – FRCP 59 – this is a remedy and this is hard to get

Time Limit: Motion must be made by either court or a party, if at all, w/in 28 days after entry of judgment 59(b)

Common Grounds:1. Legal errors at trial (mistakenly admitting/excluding evidence; mistake in jury instructions)2. Errors in the verdict (excessive, inadequate, against the clear weight of evidence)3. Misconduct by judge, jury, or lawyers - 4. New evidence is discovered or perjury is shown (evidence must be material & in existence when trial

took place)5. Surprise (must have a material effect on trial outcome, and party in question must have been diligent in

guarding against the surprise)

59(c) opposing party has 14 days to file opposing affidavits.- if the opposing party needs addtl time, w/ good cause, court can extend 20 days.

59(d) On Initiative of Court- Court can, on its own, order a new trial for any reason that would justify granting one on a party’s motion

59(e) Motion to Alter or amend a Judgment-28 days to file- Generally addressed to clerical errors but can also be used to address substantive issues

Federal: federal court may grant a new trial on its own motion

Appealability:- Grant of new trial is not appealable in federal court b/c not a final judgment; party must wait until the new trial reaches final judgment and then appeal- Denial of new trial is immediately appealable b/c final judgment (proceedings end)- Will want to raise to trial judge even if he doesn’t grant it to make record for appeal

- Granting a new trial is w/in the judge’s broad discretion- Defect must be prejudicial; harmless error will not suffice

- Error is harmless if it does not affect the substantial rights of the parties – FRCP 61

Court can grant a new trial on the grounds of REMITTITUR, saying that either you accept the reduction of this amount OR I will grant the P a new trial …. So they have to choose

Jury returns verdict that is grossly inadequate. No ADDITUR in federal courts, tied to 7th amendment, not used in common law

MOTION FOR RELIEF FROM JUDGMENT – FRCP 60- usually on grounds that weren’t discovered until after the judgment was rendered- Court has broad discretion

60 (a) – clerical errors- Can be made

60(b) – mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc.- Must be made w/in reasonable time-Very hard to get

Usual Basis: party filing the motion did not participate in trial at all & time for appeal from the judgment has passed (e.g. default judgment was entered against him)Proper Court: must be filed w/ court that originally entered the judgment

SIX CATEGORIES:1. Mistake, inadvertence, surprise, or excusable neglect

- 1 yr & court lacks discretion to extend that amount of time.2. Newly discoverable evidence which by due diligence could not have been discovered in time to move for a new trial under 59(b)

- 1yr & court lacks discretion to extend that amount of time3. Fraud, misrepresentation, or other misconduct of an adverse party

- 1 yr & court lacks discretion to extend that amount of time4. Judgment is void

- Ex. Court lacked personal jurisdiction or subject-matter jurisdiction- Case by case basis as far as “w/in reasonable time”

5. Judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application

- Changed circumstances.- Case by case basis as far as “w/in reasonable time”

6. Any other reason justifying relief from the operation of the judgment- “In the interest of justice”- Catch-all category- Case by case basis as far as “w/in reasonable time”

Time Limits: Must be filed 1 yr after entry of judgment if based on:

Mistake, inadvertence, surprise, or excusable neglect

Newly discovered evidence that was previously undiscoverable & probably would have changed the result (Must be material, exist at the time of trial, & not be discovered w/in the 10 days after entry of judgment

Fraud, misrepresentation, or other misconduct by the adverse partyNo set time limit, but must be filed w/in a reasonable time after entry of judgment if:

judgment legally void judgment has been satisfied, released, or vacated, or it’s inequitable to give the judgment

prospective effect any other grounds justifying relief (ex. decision providing a controlling precedent for the judgment is

overturned)

FRCP 61 HARMLESS ERROR - Error doesn’t affect the outcome of the trial (substantial rights of the parties)- If fail to raise objection to error at trial level, generally precluded from using that as a basis to reverse on appeal

Exception: Plain Error – egregious, obvious error such as not allowing party to enter K into evidence in a K case (often Constitutional error)

MOTION TO RECONSIDER - Not under any particular rule- Ask the court to reconsider a prior motion- Court has broad discretion, but won’t usually because of finality- Three Common Bases:

1. Intervening change in controlling law b/w the entry of the order and the motion to reconsider2. Availability of new evidence3. Need to correct clear error or prevent manifest injustice

Appeals

28 USC 1291 – Grants appellate jurisdictions

Appellate Functions:1. Error Correction2. Uniformity/Stability of Law3. Provide Guidance to lawyers and judges

Final Judgment Rule – appeals may be taken only from final decisions of district courts 28 USC 1291

Exceptions - Under 28 USC 1292(a) :

Injunctions – interlocutory orders granting/denying injunctions Receivers – orders appointing receivers (or directing disposition of property Admiralty – certain orders in admiralty proceedings

- Under 28 USC 1292(b): trial court can certify an issue of law to the app court if app decision would speed ultimate resolution of the case & the question is important- Collateral issues (see below)

Extraordinary Writs: (28 USC 1651(a)): used when immediate resolution is necessary & immediate appeal not available

Mandamus – order directing a judge to perform his legal dutyProhibition – order enjoining the judge from conduct that exceeds his legal authority

Collateral Issues: issues unrelated to the merits of the case, under circumstances in which a delay in decision would result in serious prejudice, and the issue is important to the conduct of the trial (ex. motions to disqualify a lawyer or the judge)

- Immediately appealable- Requirements:

1. Serious prejudice will result if immediate review not allowed (unreviewable on appeal)2. Issue must not involve the merits and must not require consideration of the merits3. Issue must be of legal importance in the conduct of the action.

Discretionary Rulings: app court generally won’t substitute its discretion for that of the trial judge in absence of clear abuse.

Standards of Review: De Novo – least deferential (Easier to overturn)

- Questions of Law such as summary judgment Abuse of Discretion – most deferential (Harder to overturn)

- Ex. Motion to Amend, Evidentiary Questions

54(b) In multi-claim/multi-party litigation, federal court can enter a final judgment as to fewer than all the claims or parties when court:

1. finds there is no just cause to delay entry of final judgment on non-final ruling2. makes express determination that it is entering final judgment

- Generally used only when delay will result in hardship.

Review of jury vs. non-jury verdictsJury: great deference & unlikely to be disturbedNon-Jury: will be overturned if the finding of fact was clearly erroneous

Rule 3 & 4 of Rules of Appellate Procedure3 – contents of the notice

- Who parties are- What court appeal from- Describe judgment

4- sets out timeframe- Basic timeframe is 30 days, must file to trigger jurisdiction- 4(a)(5) – can extend 30 day pd upon showing of good cause, excusable neglect,

etc.

- Defect in notice of appeal does not kill appeal- Notice of appeal is filed in district court, not appellate court

Writ of Mandamus – another way to get a non-final judgment reviewed.- Extraordinary remedies: When can’t get up to appellate court any other way

- no final judgment yet- 1651 – all-writ statute

- Authorizes Supreme Court and all federal court to issue writs appropriate and necessary to protect or in aid of its jurisdiction

- usually addressed to when judge oversteps jurisdictional bounds

Law of the Case Doctrine & Injunctions

A. Law of the Case Doctrine

- Applies to ONE unitary lawsuit that is still ongoing- If you have a case that goes up on appeal and app court remands to trial court the app court opinion and r/l established becomes the law of the case in that case.

- Evidentiary, summary judgment, etc.

- To maintain consistency and avoid reconsideration of a ruling.- Court always free to reconsider but rare when it will do so in one particular case.Exceptions:

1. New evidence not avail otherwise2. Change in the law b/w ruling and time asked to revisit3. Clear error and injustice would result

B. Injunctions

RULE 65 – INJUNCTIONS- not substitute like money damages, but an equitable remedy- Mandatory – tells MUST do something- Negative – prevents someone from doing a particular act

Classifications:1. Permanent2. Preliminary

- Are appealable- 4 Elements:

a. Π will probably succeed on the meritsb. Irreparable harm will result if not granted

- Money damages will NOT be adequate- Constitutional violation will generally show irreparable harm

c. Balance of hardships weighs in favor of the Πd. Issuance of injunction will not disserve the public interest

3. TRO – can be issued ex parte w/out any notice to other party- disfavored- Not appealable- Cannot last longer than 20 days; Rule 65 says 0 days and on showing of good cause or consent