Money Outline- Civ Pro

8/6/2019 Money Outline- Civ Pro

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Civil Procedure

I. Personal Jurisdiction (Plaintiff’s Choice of Forum)

Personal Jurisdiction Analysis Problem:Question: May the court constitutionally exercise personal jurisdiction over the

defendant?

Do the following process

1. Was the D present in the state when process was served on him?a. If YES – Can validly exercise P.J. over D. ( Burnham – Length of time is

irrelevant)

b. If NO – Go to next step…

2. Is there a Long Arm statute that allows forum state to serve a non-resident D?a. If NO – You’re done, no valid exercise of P.J. regardless of minimum

contacts.

b. If YES – Go to next step…3. Is there any other personal jurisdictional basis in the forum state of that D?

a. Domicile???? – (Milikin v. Miller )

b. Consent to be sued in the forum state? (Carnival Cruise case)c. Owns property in the forum state? (Shaeffer v. Heitner – Ct extends

minimum contacts to property – (in re, quasi in rem). Just because D has

property in a state doesn’t mean there are minimum contacts.

d. D regularly transacts in forum state.e. Notice – Was D aware of the suit?

***** If the answer was YES to any of these, you are done – There is P.J. over D.

***** If the answer is NO to these go to next step….

4. Are there CONTACTS?a. If NO – you’re done, no valid P.J. over D

b. If YES or MAYBE – Go to next step…5. Is this General Jurisdiction or Specific Jurisdiction

a. Specific Jurisdiction – Claim relates to in-state contacts. Easier to show

P.J. in Specific Jurisdiction situation. If NO specific Jurisdiction – tryGeneral …

b. General Jurisdiction – Claim does not arise from the in-state contacts.

Harder to show that jurisdiction should be valid when contact falls under

General, must show that D’s contacts are systematic and continuous.***** If contacts DO NOT fall under General or Specific Jurisdiction, NO P.J.

***** If contacts do fall under General or Specific Jurisdiction, GO TO NEXT STEP…6. Are the MINIMUM CONTACTS sufficient? ------ BOTH IN REM’S STILL

REQUIRE MINIMUM CONTACTS!!!!!

a. Core of analysis is here:

i. Volkswagen - must be foreseeable that D would get hailed intocourt there [specific jurisdiction not appropriate if claim not arising

out of contacts.]

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ii. McGee – minimum contacts between the premium payee from CA

to headquarters in TX were sufficient for CA to assert P.J. over D.

– Represents the high-water mark of extending P.J.iii. Hanson v. Denckla – Cause of action did not arise in Fl because

trust was created in PA. (no spec. juris)

***** If NO to sufficient minimum contacts : NO P.J.***** If YES to minimum contacts …. GO TO NEXT STEP

7. Is it “fair and substantial justice to hale D into court in the forum state?a. 2 PRONG TEST OF Int’l Shoe

i. Asahi – Can have minimum contacts but not have jurisdiction

asserted over D because unreasonable to do so. Creates a

BALANCING TEST interest in forum state v. burden upon D.O’Connor opinion says mere awareness that it might arrive at the

forum state is not sufficient for a finding of “purposeful

availment.”

The Brennan opinion, however, says it is foreseeable and therefore purposeful availment.

ii. Burger King – D was not unfairly surprised or terriblyinconvenienced by having to defend itself in Fl. Important

elements of determining contacts and fairness are seen here (1)

Availment to the benefits and protections of the forum state. (2)

surprise (3) inconvenience of defending in forum state.***** If YES, meets 2 prongs of Int’l Shoe then forum state court can constitutionally

exercise personal jurisdiction over D.

***** If NO, no P.J.

A. Where can we sue this defendant? – Main questionB. 2 things a court can have power over1. Defendant herself 2. Defendant’s Property

C. 3 Kinds of Personal Jurisdiction1. In Personum – Court has power over the defendant

herself (not property)2. In Rem- State does not have power over the

person, but over the property3. Quasi In Rem – Power over property

D. These cases deal with how far a state can go in exercising

jurisdiction. (Under Due Process Clause or specific statestatutes.)E. Basis for Jurisdiction over individuals:

1. Presence – jurisdiction may be exercised in theforum state by virtue of their physical presence inthe state.

2. Domicile – jurisdiction may be properly exercisedover a person who is domiciled in that forum state.

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3. Consent – jurisdiction over an individual by virtueof their consent, even if no contacts exist in theforum state.

a. Forum selectionb. Implied Consent

A. Two steps in determining jurisdiction4. DOES THE STATE HAVE A STATUTE?5. IF THERE IS A STATUTE, IS THE EXECUTION

CONSTITUTIONAL UNDER DUE PROCESS (MINIMUMCONTACTS)?

A. Mechanical Rules for Service of Process under Rule4 The only thing the federal govt. has done that isclose to regulating long arms.

a. In Personam Jurisdiction (If there are minimumcontacts) –

Such minimum contacts with the forumso that the exercise of jurisdiction doesnot offend traditional notions of fairplay and substantial justice. – “if thedefendant be not present”1. General – Claim arose anywhere, claims

unrelated to activities in the forum staterequire more significant activities in thestate for jurisdiction (residence,incorporation)Burnham (Scalia) – It may be that

General Jurisdiction is reserved forcorporations.OR

2. Specific – Claim must arise in forum,relation between contacts and suit wherethere is jurisdiction for certain claims, butnot all.

Pennoyer v. Neff – 1877 – Territoriality If you arepresent you get personal jurisdiction (unless

you are there to dispute jurisdiction only).a. Presence Basis – Present in the state when

served with process (or your agent is)General in personum jurisdiction applies

b. Domicile – The place where a person residesand plans of staying in the indefinite future.If a person has domicile in the state, the state hasgeneral personal jurisdiction

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c. Consent – Can always consent to personal jurisdiction (its waivable – if you show up)

d. Holding – State court under die process clausemay not enter an in personum judgment againstan absent, non-consenting, resident who owns

land in the state. – Assumes person who ownsproperty is always in control of it – so youcan use quasi in rem)

Hess v. Palowski – Implied Consenta. Implied Consent – When you use roads, etc. you

imply that the state has power over you, youappoint someone to represent you each time youtravel into another state.

b. Holding – The obligation to respond to a lawsuitabout taking advantage of the state’s privilege of

protections, etc. comes with the privileged of receiving these while you are in the state.

International Shoe v. Washington –1945– MinimumContacts (New way of talking about personal jurisdiction)a. Such minimum contacts with the forum so

that the exercise of jurisdiction does notoffend traditional notions of fair play andsubstantial justice. – “if the defendant benot present”

b. Can get in personum jurisdiction over a defendanteven though they are not in the state.

c. Presence – 4 justices say presence alone isenough, 4 say it is not, must have minimumcontacts too.

d. Corporations – intangible entity, deciding where acorporation is incorporated is not typically fact.

Burger King Corp. v. Rudzewicz NEW ORDER

1. Statutory Long Arm

2. Unilateral Act –a. Unilateral act is not

enough (Hanson v.Denckla)

3. A. Purposeful AvailmentB. Convenience (fairness)

a. Sub-Constitutional (BK)b. Constitutional –Asahi

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Amount of Contact

The more purposefulavailment, the less

contact you mighthave. (Brennan, Burger

King)

Less Related (to state)

- Even if action does not arise out of contactcan find general PJ (difficult):If a corporation– where it has equivalent contacts: suchcontinuous, systematic and pervasive corporateactivities that the forum state is the equivalent of another “home state.” Helicopteros – rejectedas insufficient the following contacts – Dnegotiated K in Texas, K for training in state.

World Wide Volkswagen Corp. v. Woodsona. must be foreseeable that D would get hailed

into court there [specific jurisdiction notappropriate if claim not arising out of contacts.] advertising, agents, offices,direct sales, distributors, service networksor if claim arose out of contact with thestate (McGee) Purposeful Availment

b. If claim did not arise out of contact –need to find general jurisdiction[enables Ds to be sued for a claim thatdoes not arise out of (or relate to) theirin-state contacts.

c. If product entered state through stream of commerce: Then accident arose out of contact with thestate …Must look at Asahi and WW Volkswagen –reviewing court might go either way

By manufacturers and distributors:

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Asahi – O’Connor opinion says mereawareness that it might arrive at the forumstate is not sufficient for a finding of “purposeful availment.” The Brennan opinion, however, says it is

foreseeable and therefore purposefulavailment.1. By consumer : In WW Volkswagen, the

unilateral act of a 3rd party was notsufficient for purposeful availment.

Asahi Metals Indus Corp. v. Superior Court of Ca.

a. Used motion to quash summons(dismiss) because of affidavit byofficer in Asahi saying they never

expected to be sued in Ca.b. LEGISLATURE COLLAPSED STEPS I and

II.c. SPLIT DECSION – 4 justices thought

mere foreseeability was not enough,this is not a rejection of the stream of commerce theory.

d. “Foreseeability”1. Purposeful availment is not enough2. Unilateral act is not enough (Hanson

v. Denckla)

3. Mere foresee ability is not enoughNo amount of convenience can take the place of purposefulavailment.

CHOICE OF LAW -------- - The plaintiff has choice of law in that she can sue

the defendant in his home state because the statehas personal jurisdiction over him because he isdomiciled there.

- Subject matter jurisdiction can be general (if it’s atort claim that occurred in California and it is

brought in NY, NY has subject matter jurisdictionbecause it is a general tort claim.)

- If you can get personal and subject matter jurisdiction in another state and you likethat state better, you can sue there!

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II. Notice

A. Constitutional Standard for NoticeMulhane v. Central Hanover Bank – Apprisala. “Must use a form of notice like service of process

that is reasonably calculated under all thecircumstances to apprise the defendant of thesuit.”

b. Red Flag Area – NOTICE BY PUBLICATION –very, very unlikely to be reasonable calculatedunder the circumstance to apprise actual notice. If no way to give notice, gesture is better thannothing.

c. Rule 4?

B. Opportunity to be Hearda. Pre-Hearing Seizure of Property – Replevin

(Fuentes, Mitchell, etc)b. Must:

a. Affidavit showing specific facts of ownershipb. Writ from a judge (not sheriff)c. Required to post bond incase it should not

have been seized.d. Person whose stuff is being seized is entitled

to notice.

III. Subject Matter Jurisdiction (NOT WAIVABLE)

1. Requirements1. Article 3 Section II of Constitution limits jurisdiction.

(Usually Liberal Interpretation)2. Also need Jurisdictional Statute. (Usually Strict

Interpretation)3. Cannot consent to Subject Matter Jurisdiction Rule

12(h)(3)2. 2 Types of Cases

1. Diversity of Citizenship2. Federal Question

3. State v. Federal Court- State Courts can hear all types of claims, usually allcases federal courts can hear.

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A.Diversity of Citizenship §1332(a)(1)

1. Must be between citizens of different states.Individualsd. There is no diversity if any plaintiff is a

citizen of the same state as any defendant.(Strawbridge v. Curtiss)

e. Test for diversity at the MOMENT the casewas filed.

f. DON’T USE THE WORD RESIDENTg. Citizenship – (for all people) it is the state

of domicile. (treat territories as states)h. Domicile – (1) Presence in the state (2)

Intent to stay there.Corporationsa. §1332 (c)(1) – Statute Regulation Citizenship

of Corporations – A corporation is a citizenof ALL STATES IT IS INCORPORATED. Andthe one state where its principle place of business is there is only 1 principle place of business). (CITIZENSHIP OF A CORPORATIONCAN BE MORE THAN 1 STATE)Discretionary

b. Principle Place of Business (Can onlyhave one)–

i. Nerve Center Test – Where are themajor decisions made

ii. Muscle Center Test – Where moreactivity takes place then anywhereelse

iii. MOST COURTS – will use nerve centerunless all of the activity is in a singlestate (then they will go with that).

Unincorporated Associations (LaborUnions)

i. Supreme Court tells us to look to thecitizenship of ALL OF ITS MEMBERS

ii. Most of labor law is federal questionso unions can go to federal court.

Representative Suitsa. Minors, Incompetents, Decedents

Estates - §1332(c)(2) – Look to thecitizenship of the represented person.

b. Class Actions – Look to citizenshipof representative.

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2. Amount in controversy must exceed$75,000

a. Requires a GOOD FAITHALLEGATION that the amount inquestion EXCEEDS $75,000 (at

least $75,000.01) NOT COUNTINGinterest and costs.b. Does not matter what is ultimately

recovered. (plaintiff may be liablefor costs if actual winnings are not$75,000)

c. The only way to dismiss a case foramount in controversy is if it isCLEAR TO A LEGAL CERTAINTY thatthe amount does not exceed$75,000.

d. Aggregation Rules – Aggregation– where the plaintiff must addtogether 2 or more claims to getover $75,000 limit. It is only allowedwhen there is 1 plaintiff v. 1defendant. If there is 1 claim withseveral parties that exceeds$75,000 it is not an aggregationproblem. In a joint right (property)look to the value of the property,not divided by owners.

e. Claims do not have to be relatedto aggregate.

f. Zahn – Said every member of theclass must claim more that $75,000.§1367(a) seems to overrule Zahn.BUT it is a split decision today. Freev. Abbott Labs is the only judgmenton it and its an appellate decision.

i. FederalQuestion

1. Cases ARRISING UNDER Federal Law. – Noamount in controversy requirement. Look onlyto Plaintiff’s claim!Well Pleaded Complaint Rule – A complaintthat sets forth only the plaintiff’s complaintwith no window dressing. What the claim itself

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is. Federal Question must be an integral part of the Plaintiff’s complaint.Does it arise under Federal Law?Louisville and Nashville RR Co. v. Mottley (Lifetime passes from RR) §1331 (governs

federal question)a. Face of the complaint was Federal – BUT theclaim itself was a contract claim (arisesunder the contract claim, not a federalquestion)

b. Is the plaintiff suing to enforce a RIGHTunder a federal law? Can only look at claim.

c. State courts can hear federal questioncases.

d. Anti-trusts, copyrights, federal tort claimsact, and patent infringement cases are

exclusive federal court cases.e. Deterence Opinion – So cases go through

he proper steps to Supreme Court.f. Holmes

a. Holmes Creation Test – A claim willarise under federal law if its federallaw that created the cause of action A little too narrow and a little toobroad (Smith)Federal Statue Created a cause of action. Constitution said no (Smith).

B.Supplemental Jurisdiction1. Every single individual claim must havediversity of citizenship or federal question. If not….a. §1367 Allows federal court to hear claims

that do not meet diversity or federalquestion. (Pendent or Ancillary)

2. United Mine Workers v. Gibbs §1367(a)(Strike case)a. 2 claims, 1 federal and 1 state. Court can

hear the state law claim if it is a CommonNucleus of Operative Fact. (the sametransaction or occurrence)

b. As long as the non-federal, non-diversitycase has the same common nucleus of operative fact, it can be heard in federal

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court. (looks like Supreme Court overrulesZahn – but its undecided)

c. 1990 – It overruled Finley (not Kroger), it putAncillary and Pendant Party Jurisdictiontogether.

3. §1367(b) – Cuts back on Supplemental Jurisdiction in Diversity cases.1. Claims by plaintiffs over people

joined by certain rules. (14,19, 20,24)

2. Claims by someone who is proposedto be a plaintiff under Rule 19.

3. Claims by someone seeking tointervene as a plaintiff under Rule24.

4. Moore v. N.Y. Cotton Exchange

1. Under Rule 13(a) If federal andstate claims are related enoughto be the same case (underArticle III) then they can beheard in federal court.

2. Rule 13(b) Permissivecounterclaim – if it doesn’t ariseout of the same facts then itbetter have federal jurisdiction.

5. Finley v. United States(Airplane crash in California)

a. 2 claims arising from same transaction, 1federal (against U.S.) and 1 state (againstprivate company).

b. Pendant Parties – Different claims arisingfrom same common nucleus of operativefacts.

c. §1367 overrules this case and §1367(b) doesnot apply because it is a federal questioncase, not a diversity one.

Gibbs Kroger

Fed

PL D PL D

State no diversity NO, cant do it Yes, can do

D(2)

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Cotton Exc Aldinger (1979)13(a)

fed ? D(1) NO, Can’t do itPL_________D PL

No fed subj D(2)

Finleyexclu D(1)

PL fed

D(2) Plaintiff doesn’t have choice to got to state court, buts court says too bad.

3. Removal1. Gives the defendant a choice to go to federalcourt.

a. Can only remove from state to federal court. b. §1441 – Can only remove a case to the

federal district court that embraces thedistrict court where it was initially filed.

c. All of the defendants have to agree to theremoval. EXCEPT §1441(c) which allows adefendant to remove when there is aseparate and independent federal questionclaim against her. Claims must beunrelated to each other – Cuts throughattempts to make a claim un-

removable by fraudulent joinder.a. IF THIS DOESN’T WORK FOR

YOU, LOOK TO §1367.2. General Testa. A case is removable if it could have

originally been heard in federal court.(federal subject matter jurisdiction)

b. EXCEPT: (ONLY IN DIVERSITY CASES)a. No removal if any defendant is a

citizen of the forum.b. No removal more than 1 year after the

case was filed in state court. §1446(b)3. JUST DO ITa. Removal is not something you ask for, you

just do it.

IV. Venue1. Which Federal Court (district) do you go to?

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a. If no Constitutional component, purelystatutory.

b. These rules DO NOT apply to Removal cases.c. These rules do not apply in local actions (land

cases), but to transitory ones (all other cases).

a. BasicVenueRules

ii. §1391(a)(3) – Venue Rules fordiversity of citizen cases.

iii. §1391(b)(3) – Venue Rules forFederal Question cases.

iv. Only slight difference betweenthe 2.

v. FOR ALL CASES, THERE ARE 2CHOICES

1) Defendant’s ResidenceLay venue in any districtwhere all defendantsRESIDE (if they all residein different districts of thesame state then venuecan be in any districtwhere 1 resides OR

2) Substantial part of events occurred Layvenue in any district

where a substantial partof the claim arose. (Canpretty much always layvenue under this choice –unless the claim arisesoverseas)

vi. Residence – Usually the same asyour domicile, CORPORATIONS

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reside in all districts where thecorporation is subject topersonal jurisdiction when thecase is commenced. – differentthan citizenship.

a. Transf erof VenueRules

1. Deal with inTRAsystem transfer (1federal district court to another federaldistrict court) It is not removal.

2. Hoffman v. Blaski b. Can only transfer to a federal

district court that has personal jurisdiction over the defendantand is a proper venue.

c. Rejected notion that if all rightswere waived it might have beenfiled. S.Ct said NO.

d. Any room for forum nonconveniens when §1404 won’twork?

3. §1404(a) – Only available if the originalcourt was a proper venue.e. Can only transfer to a federal

district court that has personal jurisdiction over the defendantand is a proper venue. – BUTthe new venue is better.

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f. Choice of law rules from theoriginal court go with the case(Ferens – Jurisdiction leads toforum shopping, not §1404 )

4. §1406(a) – Only applies when the

original court is an IMPROPER venue.a. Court can transfer OR dismiss if venue is wrong.

b. Usually they will transfer if possible.

b. Forum

Non-Convenie

ns

4. Doctrine by which a court dismissesthe case because the balance of convenience tips strongly towardanother court.

5. Need a stronger showing thantraditional transfer. Comes up whenyou cannot transfer. (Piper v. Reyno– was way to inconvenient)

6. If you dismiss under Forum Non-Conveniens, the court can imposeconditions.

V. Challenging Jurisdiction1. Special Appearance Doctrine – Some courts

recognize it. By coming to the state to challenge

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jurisdiction you do not subject yourself to personal jurisdiction. (Protective Bubble) You can go too far,and constitute a general appearance.

2. Federal Rule 12 – Says there are 2 ways torespond

a. File an answer b. Plead a motion to dismiss the case 12(b)Never Waived1. Lack of Subject Matter JurisdictionWaivable Defenses – Must be put in FIRSTRULE 12 RESPONSE!2. Lack of Personal Jurisdiction3. Improper Venue4. Insufficient Process (Summons and

Complaint are messed up)5. Insufficient Service of Process

Non-Waivable6. Failure to State a Claim7. Failure to Join an Indispensable Party

VI. Erie DoctrineAnalyzing Erie:1. Is this a diversity case?

If NO, ignore Erie

If YES, next step2. Is there a statute on point?

If YES, ignore ErieIf NO, go to next step

3. Is there a FRCP on point?If YES, ignore Erie: See Hanna v. Plumer , takes FRCP out of Erie consideration

If NO, go to next step

4. Does the federal policy conflict with state policy?If NO, follow federal policy

If YES, go to next step

5. Is the state policy in conflict procedural or substantive?If SUBSTANTIVE, follow that state policy rule

If PROCEDURAL,

General rule of thumb is to follow federal case law. But some exceptions:See statute of limitations (is a state procedural matter but given the state policy interest found in Guaranty Trust , would be followed by federal

court)

FEDERAL QUESTION?

Yes No

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R.E.A.Go down Erie track

R.D.A.Direct collision

Room for (Federal Law Wins)Erie both (Stewart & Burlington)

(Guaranty Trust v. York, Byrd, Hanna v. Plumer)

Salve v. Regina College (If district court is hearing law of state you’re in, then appealscourt wont review, if not it will)

If they are looking at state law, it’s the highest court in the state.

* Note – On appeals in federal court, they make no deference to the judge sitting

on the bench, so it is important to have your state represented

1. Diversity of Citizenship Cases are only affected. – InClash of Federal and State Law.

2. Swift v. Tyson – Said Federal Courts do not have toconsider state claims.

3. Erie v . Thompkins – In a diversity case, federalcourt has to apply state substantive lawbecause of the Constitution and the Rules of Decision Act. (Deemed Swift unconstitutionalbecause it granted federal courts the power to

make laws) Federal rules and procedurecontrol procedural matters.

a. Rules of Decision Act – If there is no applicablefederal law, you must apply state law.

b. If it is a matter of procedure the federal courtscan do whatever they want.

4. Distinguishing between substance and procedure.a. Substance v. Procedure – Erie Doctrine has 2

steps:1. Federal Rule. Does a FRCP apply? Then

apply it and skip the Erie analysis. (As

long as the FRCP is Constitutional – and itnever has not been, it trumps state law)Rules Enabling Act if not…..

2. Rules of Decision Act i. Outcome Determinative –

Guaranty Trust v. York – Outcomeshould be the same in both federaland state court. Does the outcome

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differ significantly in differentcourts? Statute of limitations issubstantive for Erie purposes.Choice of law is substantive(Klaxon) – the federal court must

do whatever the state court woulddo.ii. Balancing – Byrd v. Blueridge –

Balance strength of respectiveinterests. Supreme Court has nevergone back to this case. Balancinginterest, federal law won out.

iii. Avoidance of Forum Shopping.Hanna v. Plumer (dicta) Do notwant to promote flocking to federalcourt. Will people look to another

court to avoid remedy in the othercourt?If there is a federal statute onpoint, it controls, noapplication of Erie doctrine.

VII. Pleadings1. Documents filed with the court setting forth claims

and defenses.2. Good for 1 purpose – TO GIVE NOTICE.3. Transubstantive – 1 form of action (civil action)4. Code Pleadings – Required plain and concise

statement of the facts.a. Still very restrictive on joinder of clamsb. Was seen as liberal at first, but was replaced

be federal rulesc. NOW WE HAVE OTHER MECHANISMS TO COVER

THE FACTS.5. Complaint, Answer and Reply (an answer to a

counter claim) = RULE 7(a)6. Rule 8(a)(2) – Short and plain statement of the

claim showing that she’s in relief should be filed byplaintiff.

7. Notice Pleading – The other side has to havenotice of what they are being sued for.

8. Motion to Dismiss for Failure to State a claim12(b)(6) – Only granted when there is absolutelyno set of facts under the allegations that would justify a judgment.

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A. Rule 11

1. Think about what you are doing first, dothe research, examine the facts.

2. Requires the attorney to sign alldocuments (except discovery ones). Thiscertifies that after an inquiry reasonableunder the circumstances, 4 things aretrue.

i. Paper is not for an improperpurpose

ii. Any legal contentions arewarranted by law or non-frivolousargument that the law should bechanged.

iii. Any factual contentions haveevidentiary support, or are likely toafter further consideration.

iv. Denials of factual contentions haveevidentiary support or are likely to.

Changes after 19933. Certification under Rule 11 is continuing.

Every time a document is presented tothe court it is certified.

4. Motions under Rule 11 are served notfiled. The person has 21 days to

withdraw offending argument, orsanctions are charged.

5. Sanctions are discretionary under Rule11. (They didn’t used to be) They can beimposed against attorney, firm, or party.Sanctions are deterrents

B. Complaint3 Requirements (under Rule 8(a))1. Statement of Subject Matter Jurisdiction2. Statement of the Claim (doesn’t require a greatamount of detail)Must provide detail for:a. Circumstances constituting fraud or mistakeb. Items of special damage (must be pleaded with

specificity) those items that do not naturally flowfrom an event.

3. A demand for judgment

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C. Defendant’s Response1. Answer

a. If motion is denied, an answer may befiled.

b. Defendant response must be within 20days of service of process. (Motion ORanswer)

c. Answer must RESPOND to complaint.3 types of responses:

a. Admitb. Denyc. State you lack sufficient info to

admit or deny – you can neveruse this if the answer is in yourcontrol, or its public knowledge.

d. Affirmative Defenses Rule 8(c) –must be in answer

2. Motiona. 12(b) motionsb. 12(e) – motion for more definite

statement (pretty rare) 12(f) motionto strike (21 days after answer is filed)

c. 37(b)(2) – Sanctions

D. AmendmentsRule 15(a) (very, very liberal)

a. Plaintiff has a right to amendonce before defendant serveshis answer (not motion).

b. Defendant has the right toamend once within 20 days of serving answer. (20 day ruleapplies only to defendant)

c. If there is no right to amend,ask for relief of court = itSHALL be given (unless youare abusing system)

d. Can always order separate trialsunder Rule 42(b).

Rule 15(b)

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1. Treat complaints as though they wereamended to show new claims when they arenot objected.

2. Can move to amend during trial and burdengoes to non-amending trial to show it will make

them prejudice to show his case on merits.(that it was sprung on them---then they get afew weeks)

Statute of LimitationsWhen it has run:1. Amend to add a new claim. Rule 15(c)(2) –

relates back to original pleading if it concernsthe same conduct, transaction, or occurrencethen it is ok under stat of limitations.

2. Amend to change the party to which the claim

is asserted.Rule 15(c)(3) Must show:

vii. The transaction is from thesame conduct, transaction, oroccurrence.

viii. New party knew about the casew/in 120 days after the filing.

ix. The new person knew that butfor a mistake, they would havebeen sued originally.

Rule 42(b)1. Can order separate trials to avoid jury confusion.

VIII. Joinder1. How big is a Civil Action able to be?2. Every single claim in federal court must have a

basis for subject matter jurisdiction. Look for it inevery joinder case. OR Supplemental jurisdictionmay be available.

A. Claim Joinder by the Plaintiff (Rule 18(a))

Plaintiff can join all claims against defendant within subjectmatter jurisdiction boundaries.

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B. Claim Joinder by the Defendant1. Counterclaim

a. Claim against an opposing party. (offensive by thedefendant back against the plaintiff)

b. Filed with pleadingc. Two types:

a. Rule 13(a) Compulsory Counterclaim – Arisesfrom the same transaction or occurrence as theplaintiff’s claim. Defendant must assert it in thepending claim or IT’S GONE!

b. Rule 13(b) Permissive Counter Claim – Does notarise from same transaction and does not have tobe asserted.

2. Cross claima. Offensive claim against a co-party.

b. Rule 13(g) – May assert a cross claim if it arisesout of the same transaction or occurrence. (notcompulsory) – against someone joined by 20.

C. Party Joinder1. Rule 20(a) – Proper Parties (Permissive

Party Joinder) You can have co-plaintiffs if you meet a 2 part test:

i. Claims arise from the sametransaction or occurrence

ii. Claims raise at least 1 commonquestion of law or fact.

D. Necessary and Indispensable Parties (Letter “C”= claims with existing parties) -

1. Rule 19 Compulsory Party Joinder –Because absentee is necessary .

2. 3 Steps of Rule 191. Who is necessary? (Rule 19(a)(1) –

Considers if complete relief is possiblew/out absentee – efficiency concern)

a. Rule 19(a)(2) – Absentee must

have some interest relating totransaction. b. 19(a)(2)(1) Absentee’s interest

may be hurt if they are not joined.

c. 19(a)(2)(2) – Defendant maybe hurt if absentee is not joined

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2. Is joinder feasible? i.e.…Lack of personal jurisdiction over absentee orlack of subject matter jurisdiction.

a. If NOT, either proceed withoutthem or dismiss the case Rule

19(b) – has 14 factors toconsider. b. Courts generally wont dismiss

unless there is an alternativeforum. Joint tortfeasors are NOT necessary parties.

3. If it would destroy the litigation,courts will go to great lengths toNOT find parties indispensable.

E. Impleader (Letter “I” means bringing in new parties)1. Third Party Practice – 3rd party

brought in (usually bydefendant in vicariousliability claim)

2. Third Party Complaint- Must befiled and process must beserved on 3rd party.

3. Rule 14(a) – After Third PartyDefendant is asserted, newclaims can be asserted by theparties against each other if they arise out of the same

transaction or occurrence.1. uphill by plaintiff cant get

supplemental jurisdictionin a diversity casebecause of §1367(b) onlyD can!

2. Owen Equipment v.Kroger , downhill bydefendant)

4. Every time we assess oneof these claims we must

check for subject matter jurisdiction.

F. InterventionRule 24 – An absentee (non-party) wants to jointhe case, they can come in as a plaintiff or adefendant (with permission of the court.)2 Typesd. Intervention of Right

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a. Rule 24(a)(2) – Must show 2things.

b. Absentee’s interest may be harmedif they are not joined – Like 19(a)(2)(1)

c. The absentee’s interest is notbeing adequately represented now.

d. Rule 19 applies to defendant Rule24 applies to absentee

e. Permissive Intervention

a. Rule 24(b)(2) – All you have toshow is that absentee’s pendingcase and the claim or defense haveat least 1 common question (atdiscretion of court)

b. In a diversity case – it does notmake much sense to let absenteein if they destroy jurisdiction.NEVER SUPPLEMENTAL

JURISDICTION!

G. Interpleader1. Involves ownership of a stake (a thing).2. Stakeholder forces all claimants into single litigation over

who owns property.2 Steps

1. Stakeholder goes into courtand depositing stake andclaiming it’s a proper litigationcase

2. All of the possible owners dukeit out one the merits.

3. Stakeholder can be included asan interested party OR be adisinterested stakeholder.

3. Two Kinds of Interpleadera. Rule interpleader under FRCP 22

a. Basically a Diversity of citizenship case.i. Stakeholder must be diverse from

every claimant.ii. Must exceed $75,000iii. Service of process is the same as

regular law suitiv. Use regular venue rulesv. If all claimants are co-citizens – MUST

USE RULE INTERPLEADER.

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b. Statutory Interpleader (under statutory basis)a. Under §1335 all you need is one claimant to

be diverse from 1 other claimant.(citizenship of stakeholder is irrelevant.

b. All you need is $500 or more

c. §2361 Nationwide service of process (nevera personal jurisdiction problem unlesssomeone is out of the country)

d. §1367 – Can lay venue anywhere anyclaimant resides.

e. Given a choice we would ALWAYS go w/statutory interpleader.

IX. Discovery1. Federal Rules are very liberal in letting people get

info from the other side. Not formalistic!2. The idea is that we are not looking for new

evidence coming out at trial.1. Why is all discovery laid out ahead of time?

a. Settlement valueb. Save costsc. So you can evaluate the case before you file it

B.Rule 26(a) – Required Disclosures1. Rule 26(a)(1) - Requires parties to produce Info even

though no one asks for it. CAN OPT OUT Three Types of info:

d. Computation of Damagese. Any info on insurancef. Give info that relates to disputed facts alleged with

particularity in the pleadings.

2. Rule 26(a)(2) (During Discovery) - Experts – Mustidentify any experts that may be used in the trial w/written report of info used. NO WAY TO OPT OUT

3. Rule 26(a)(3) (Pre-trial) – Info about trial evidence,documents, witnesses, etc. NO WAY TO OPT OUT

C. Discovery Devices (not really)

4. Required disclosure do not overrule regular discoveryrules.

5. Depositions under either Rule 30 or Rule 31 andRequests to Produce under Rule 34 are different thanother discovery devices because they can be directed atnon-parties and parties. BUT if we are going to useeither of those to get info from a non-party, we have tosubpoena the non-party.

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6. Rule 35 – The physical or mental examination – Mustget a court order (based on showing of actualcontroversy over the health and good cause) in order todo it. (Obviously to protect privacy interest).

X. Pre-Trial AdjudicationMechanisms of Discovery1. Rule 26(g) – Discovery requests and responses

must be certified, the lawyer must makereasonable inquiry and is telling the world (bysigning them) that they are not for an improperpurpose or unduly burdensome.

2. Rule 26(e) – There is a duty to supplement – If aparty learns that its response is incorrect, it mustsupplement it.

Scope of Discovery3. Rule 26(b)(1) – We can discover anything that is

relevant (reasonably calculated to lead toadmissible evidence)

4. Scope of the Suit – Can only ask for info that is inthe scope of the suit.

5. Evidentiary Privileges – Cannot get privilegedinfo (atty client, etc.)

Work Product6. Rule 26(b)(3) – Calls it trial preparation material

(Hickman v. Taylor) – Material generated in

anticipation of litigation. Does not have to begenerated by a lawyer.Court shall protect against disclosure of mentalimpressions, theories, conclusions and opinions of alawyer.2 Prong Test (from Hickman – to avoid “freeriders”)

a. Substantial Need for the informationb. Cannot get the info or its equivalent without

undue hardship.Discovery Sanctions – Rule 11 does not cover

7. Rule 37(c)(1) – If you fail to make a required disclosureunder 26(a).

8. Rule 37(c)(2) – Sanction for failure to admit. (if youprove 1 side didn’t admit something – they have to payall of the costs for proving it)

9. Rule 26(c) – Protective Order (many reasons listed inrule).

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10. Rule 37(a) and 37(b) – Before we can seek anysanctions we must clear to the court that we tried toattaint he info:

a. Rule 37(a)(2) – Partial failure to respond. (not aheavy sanction – basically all you can get is ordercompelling the answers)

b. Rule 37(b)(2) – Rambo Sanctions – Very strictsanctions for not disclosing info (may even getcontempt) – Need to get an order compelling info

c. Rule 37(a)(2) – Partial failure to respond. (not aheavy sanction – basically all you can get is ordercompelling the answers)

d. Rule 37(b)(2) – Rambo Sanctions – Very strictsanctions for not disclosing info (may even getcontempt) – Need to get an order compelling info

THEN the sanctions can apply. RAMBO SACTIONS

LISTED IN RULE 37(b)(2)e. Rule 37(d) – Total failure to comply w/ discoveryrules. (bigger sanctions – you go directly to RAMBOsanctions, but cant get contempt)

11. Rule 41(b) – Involuntary Dismissal Pretrial adjudicationagainst the plaintiff, failure to prosecute, or abide bycourt order.

Dismissals

12. Involuntary Dismissal under Rule 41(b) – Failure toprosecute, Failure to abide by FRCP, Failure to liveup to a court order. (Motion is not entirelynecessary, court has power to do this on its own)

13. Involuntary Dismissals under 12(b) Rules.14. Rule 41(a) – Voluntary Dismissal without prejudice

by plaintiff (can only do it once)15. Rule 55 – Default and Default Judgment – Default is

a notation on the docket sheet made by clerk of thecourt (doesn’t entitle you to money). Default Judgment made by clerk of judge, cannot exceedwhat plaintiff demanded in the complaint.

16. Rule 56 - Summary Judgment – Speaking 12(b)(6)

a. Why –1. To win case short of trial2. To avoid useless Trials3. Simplify trial (partial summary judgment)4. Educate judge5. Lock adversary into a stay

b. When –

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1. Clamant – 20 days can file by itself or inanswer

2. Defendant – Any timec. What papers –

1. Notice of motion (what you file)

2. Memorandum of law – brief 3. Statement of concise facts4. Affidavit (sworn statement)

d. What you must show –1. Moving Party (Must show both) –

i. No general issue of material factii. Moving party is entitled to

judgment as a matter of law2. Respondent (Only has to show 1) -

i. Is it a question of material factii. Moving Party is not entitled to

judgment as a matter of lawe. Looks at evidence – Goes beyond the face of

the complaint.f. Looks at whether the case should GO TO TRIAL.

(Whether there is an issue of material fact)g. Looks at admissible evidence only and ask if

there is a general dispute of material fact.h. IT IS A DISCRETIONARY JUDGEMENT

1. Celotex – told district courts to usesummary judgment more often.

2. More difficult in tort cases (more likely to

be denied)3. Judge cannot resolve a disputed fact on

summary judgment.

XI. TrialD. Jury Trial

1. Jury is to settle dispute over fact. (Constitutional Right)

2. Rule 38(a) – Must demand jury trial in writing withintime frame or its waived and judge is the fact finder.

3. 7th Amendment – PRESERVES the right to a jury trial inactions at law (not equity). Sets up dichotomy of law

and equity. There are equity claims and law claims eventhough they work together.

a. Law- get jury if it’s a legal question b. Equity- if no legal question, no juryc. Mix of law and Equity – Beacon Theaters – 3

Important Principles1. Instead of looking at the case as a whole,

the court must look at it issue by issue.

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2. If there is an issue that underlies bothlaw and equity you must give a jury.

3. Always try jury issues first.d. 7th Amendment does not apply to the states,

only civil cases in federal court.

E. Selection of the Jury

4. Rule 48 – Lays out composition of jury.

5. Potential Venier of Jurors – questioned by vaudier.

6. Strikes of jurors – for cause

7. 3 Preemptory Strikes per side, must give gender andrace neutral reason for strikes (Edmunson).

F. Post Trial Motions8. Directed Verdict - Motion for Judgment as a

Matter of Law. (JMOL)

a. Governed by Rule 50(a).b. Effect is to take the case away from the jury, judge says she’s in charge.

c. Can be brought by the defendant TWICE, atthe close of plaintiff’s evidence and close of allevidence. Can be brought by plaintiff once, atthe close of all evidence.

d. Standard – Reasonable people could notdisagree on the result. (exactly same idea assummary judgment)

9. Judgment Not Withstanding the Verdict -

Renewed Motion for Judgment as a Matter of Law.a. Rule 50(b) – Loosing party files and if it is

granted it results in judgment for them.b. Standard – Reasonable people could not

disagree on the result, and its different fromwhat jury found.

c. Cannot make the Judgment Not Withstandingthe Verdict UNLESS you made the motion for judgment of Directed Verdict AT CLOSING OFALL EVIDENCE.

10. Motion for New Trial.

a. Rule 59 – Motion for a New Trialb. Errors at trial require fresh start. (Not as

extreme as JMOL and JMWV)c. Does not necessarily take the judgment away.d. Rule 59(a) – grounds for the new trial motion.

i.e. The judge messed up, new evidence cameto life, misconduct by a juror.

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e. New Trial Orders can be partial. (jury is off ondamages, etc.)

f. Remittitur – Tell plaintiff that unless they takea lower amount, there will be a new trial. (ok infederal court)

g. Additiur – Court tells defendant that unlessthey give more $ there will be a new trial.(Unconstitutional in federal court)

XII. Appeal

G.What is Appeal-able1. Final Judgment Rule – We cannot appeal until there is

a final judgment (the merits of the case are decided) –After making this order, does the trial judge haveanything left to do on the merits of the case (besides

attorney’s fees)? – If no, Final Judgment Rule is met.2. EXCEPTIONS:

a. Some are review-able as of right (injunctions, etc)

b. §1292(b) – Can appeal if judge orders it’s acontrolling issue of law and there is a substantialdifference in opinion. (Finley)

c. Rule 54(b) – When 1 lawsuit involves multipleclaims or parties and trial court disposes one, it canenter a final judgment on that claim, but it had tobe very specific and make an express finding that ithas no just reason for delay on the appeal.

d. Collateral Order Exception – (Cohen) Putsdiscretion in the apeallate court. Must show 3things:

1. That it is an important issue separate fromthe merits.

2. Order completely resolved that issue3. That issue is effectively un-reviewable if we

have to wait until final judgment. – If districtcourt denies class action it is not apealable.

e. Going through a Writ –

1. Writ of Mandaemus – Trying to stop thedistrict judge from doing something.

2. Writ of Prohibition – Trying to get thedistrict judge to do something.3. These are tough to get – only supposed to be

used to correct a jurisdictional type defect.

H. What is the Standard of Review.3. How much deference is the court of appeals willing to

give the trial court judge.

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4. De Novo – Appellate court will decided questions of lawDe Novo (itself).

5. Findings of Fact by the Judge – Appeals court will onlyreverse if its clearly erroneous.

6. Findings of Fact by the Jury – Court of appeals willgenerally uphold this if the jury could reasonable have

found it.7. Discretionary Abuse – Whether to compel discovery, etc.

If there was an abuse of discretion the Court of Appealswill reverse.

XIII. Claim and Issue Preclusion

1. Earlier case has gone to judgment, there is asecond case asking if the first case’s judgment precludes the litigation of the

second case?2. Two ways to be precluded

a. Res Judicatab. Collateral Estoppel

A. Res Judicata – Claim Preclusion1. One Bite at the Apple Rule – You only get

one day in court so you better argueEVERYTHING the first time. (all rights torelief should be requested)

2. Three Steps

i. Did the same claimant sue thesame defendant in both cases?(More precise than requiring thesame parties) Bar (claimant looses) or Merger (claimant wins –all claims are merged into judgment)

ii. The first suit must have ended in avalid final judgment on the merits.(not necessarily litigated) See Rule41(b). Everything has been argued

on the merits unless it was basedon jurisdiction, venue, orindispensable parties.

iii. The two cases must involve thesame claim. The claimant mustseek in 1 suit all rights to relief shewants from that claim or theopportunity to do so is waived.

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Claim – Most courts define ittransactionally. A right to relief arising from the same transactionor occurrence, or a series of relatedtransaction. (some state courts

disagree)iv. Herandine Case – Preceeded bynew restatement (would probablyover rule)

3. Costello v. United States –i. Govt. is able to avoid ascertion of

affirmative offense of claimpreclusion by convincing theSupreme Court that it was aprocedural defect.

ii. Procedural dismissal based on

jurisdiction.iii. People who are trying to avoid

claim preclusion try to assertCostello and people trying toprevent claim preclusion try toavoid it.

I. Collateral Estoppel – Issue Preclusion3. Precludes litigation of a particular issue that was

argued and determined.4. Says that issue is deemed established in the second

action. (Don’t re-litigate the issue)5. Element common to 2 different claims6. Four Steps:

a. The same issue was actually litigated anddetermined in the first case. (Can’t get it froma default judgment)

b. That issue must have been essential to thefirst judgment. (Without the issue we could nothave had the judgment or the same result)

c. Collateral Estoppel can only be assertedagainst someone who was a party to the

case. (Was in privity of a party in the first case– represented by) RULED BY DUE PROCESS –cannot be changed.

d. Rule 36 can be used to settle questions beforetrial because of issue preclusion.

e. Mutuality Rule – Collateral estoppel can onlybe used by someone who was a party. (if you

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cant be bound by it why should you be able totake advantage of it) Traditional Approach

f. Non-Mutual Defensive Collateral Estoppel– Plaintiff using Collateral Estoppel in the 2nd

case was not a party to the first case. (Almost

every court uses this)1. You can punish “bench sitters” bynot letting them use preclusion.

g. Non-Mutual Offensive Collateral Estoppel– Defendant using Collateral Estoppel in the 2nd

case was not a party in the first case. (Somecourts do not allow it, more will use it if it’s fairunder the circumstances (Parklane Hosiery )

h. Fairness Factors – (Parklane Hosiery)1. Had a full and fair opportunity to litigate

in the 1st case.

2. Multiple suits were foreseeable.3. New party could not have joined easily in

the first case.4. No inconsistent judgments.

i. Privity – if earlier judgment was not a party,but was close enough, they are bound.

Issue Preclusion Overviewa.

Enforcing Court (looksto law of issuing state)

Issuing CourtState State

Full Faith & Credit

Clause

b.F §1738 Full

Fed Faith &OR state

Credit

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S Statute

c.

Fed FedOR State Supremacy

Clause State

* There is an exception to preclusion indifferent circuits. A case can be argued in 1

circuit’s federal court and RE argued in anothercircuit without preclusion.