Civ Pro Fall Outline

8/8/2019 Civ Pro Fall Outline

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Laundry lista.

Constitutionalb.

State Long Arm Statute1.

Constitutional Jurisdiction2.

Pennoyer (consent, resident, agent, physical presence, property through in rem)

If no,

Min. Contacts (Shoe)

Quality and nature

Purposeful Availment (Hanson) to benefits protections of law in forum state.A.

Cannot be unilateral random, or isolated.

Foreseeability of being hailed into court. (WWV)

RelatednessB.

General Contacts must be Systematic/Continuous

Specific contacts must be significant.

Only one may be needed (McGee)

Fairness (Reasonable)C.

Not offend traditional notions of fair play and substantial justice

Forum states interest in dispute1.

Plaintiff interest in convenient/effective relief2.

Judicial systems interest in efficiency3.

Shared social interest of states4.

Burden of defendant weighed against

Personal Jurisdiction

Cases

McGee: manifest interest in protecting citizens

Hanson: purposefully avail to benefits privileges of state

Gray: stream of commerce

WWV: foreseeability alone is not enough

Keeton: substantial interest in cooperating with other states to provide efficient litigation

Calder: 1. Defendant must aim conduct towards state 2. Effects must be felt in forum state

Burger King: contract alone not enough.

Asahi: Stream of Commerce

Brennan (4): mere awareness is enough

O Connor (3) Mere awareness is not enough

Fall Final OutlineMonday, November 22, 2010

7:49 PM

Fall Final Outline Page 1


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Fairness: burden severe if distance is great

Helicol: mere purchases at regular intervals not enough to establish general

Shaffer: min contacts for in rem

Burnham: tag jurisdiction allowed even without min. contacts.

Mullane: Local newspaper was only notice. What is proper differs from circumstances. Known

beneficiaries were not sent letters. Was unreasonable not to send letters to known defendants.

1.

2.

Rule: Notice reasonably calculated, under all the circumstances to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections.

3.

4.

Triad: DHUPA must have sufficient indicia of permanence and courts prefer person to be residing

there while being served.

5.

Notice and Opportunity to be Heard

Subject Matter Jurisdiction

Constitutional requirement Article III1.

Statute Law (28 U.S.C)2.

Limited Federal Subject Matter Jurisdiction

Federal Question 18 USC 13311.

Diversity 18 USC 13322.

Alienage 18 USC 13333.Admiralty 18 USC 13334.

Dispute between states, counsels, ambassadors5.

Matters Addressed by the Courts

28 U.S.C 1331 Federal Question

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws,

or treaties of the United States.

Claim arises under constitution, laws, or treaties1.

Satisfies Well Pleaded Complaint Rule2.

Federal question must arise in the core of the complaint and must arise in the plaintiffs main

allegations not counterclaim or defense.

Checklist

When a Federal Issue is embedded in a state question apply Grable Test

State Law claim raises a federal issue1.

Federal issue is disputed and substantial2.

Veto Element: Balance of federal and state judicial responsibilities3.

Grable Test requires court to address whether substantial federal question exists

If the federal court may entertain the claim without disturbing any congressionally approved balance

between federal and state responsibilities.



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Note: No amount in controversy requirement.

Diversity of Citizenship and Alienage 28 U.S.C. 1332

Alienage Jurisdiction

Citizen of state v citizen of foreign country

Complete Diversity Rule1.

(1) No plaintiff is a citizen of same state as any defendant.

Date: diversity determined date action was instituted1.

Citizenship2.

Persons: A person is citizen of state if he is domiciled there.A.

Domicile is (1) physical presence (2) intent to remain

*Domicile is determined at time of filing

CorporationB.

For diversity purposes corporation is a citizen in its (1) state of incorporation and (2) principle place of

business

Determining PPB

Hertz Nerve Center Test- state where executive decisions are made and are operating. Generally where

HQ is located.

Non-Incorporated (L.L.C, union, partnerships)C.

Citizen of everywhere where members are citizens

Amount in Claims Must Exceed 75,0001.

Plaintiff good faith; must be disproven by legal fact (statute limitations) actual amount awarded

irrelevant.

Aggregation means plaintiff can add any claim he has against defendant, but cannot add different claimsagainst different defendants to reach number

Cannot create collusively joined parties

1P v 1D

Aggregated claims exceed 75,000.

Multiple Parties

At least one Plaintiff must have claim exceeding $ 75,000 against joint tortfeasor defendants.

Class Action

Claim of every member in class exceed 75,000

Claim also total in more than 5 million

VenueUnderlying policies: judicial efficiency, limit forum shopping, convenience of parties.

District in which any defendant resides, if all defendants reside in same state1.

Judicial district in which substantialpart of events giving rise to claims occurred2.

Any district in which defendant subject to pj at time of action, if no other district3.

1391(a) Venue in diversity cases

District in which any defendant resides, if all defendants reside in same state1.

Judicial district in which substantial part of events giving rise to claims occured2.

Any district in which defendant may be found, if no other district.3.

1391(b) Venue all other cases



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Any judicial district corporation subject to personal jurisdiction at time of action.1.

Resides in district with most significant contacts2.

1391 Venue of Corporations

*Non incorporated are applicable to 1391(c)

Aliens may be sued in any district1.

1391(d) Venue for Aliens

Notes:

*Forum selection clauses relative but not absolute*"except as provided by law" - some additional statutes may provide law instead

*Local rule: venue where land is located. In rem, remedy (claim to quiet title, damages to land, trespass,

waste, enforcement)

Transfer of Venue

1404(a) Change of Venue

For convenience of parties and witnesses, or interest of justice, district court may transfer to any other

district where it might have been brought. Transferee court must have PJ, SMJ, Venue

*Federal Courts never transfer to state courts. Vice versa.

Choice of Law: Diversity Cases Only

Laws of transferring state applies unless venue was improper, that case state receiving applies own laws.

District court in which filed case laying venue in wrong district may dismiss or transfer where it

may have been brought.

a.

1406(a) Cure of Waiver of Defect "Goldlawr Transfers"

Permits transfer of cases in an improper venue

Forum Non Conveniens28 USC 1412

District court may transfer case to another district court in interest of justice or for convenience ofparties.

Courts balance convenience to plaintiffs choice of forum. Defendant needs to show compelling reason

for change.

Courts factor convenience factors of public and private interests

Ease of access of proof (documents)1.

Subpoenas2.

View of premise3.

Change in substantive law which affects plaintiff4.

Private interests of litigants include

Administrative difficulties1.

Court congestion2.

Local interest in having disputes resolved locally3.

Lack of legal expertise (familiarity with law)4.

Jury Burden on citizens5.

Public Factors

*Courts will not grant FNC unless Alternative forum exists

RemovalRemoval Jurisdiction 28 U.S.C. 1441, 1446, 1447

Defendant may choose to remove case to federal court to avoid local bias



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State to Federal Only1.

May only remove to federal district "in the district"2.

All defendants must consent3.

Removal is discretionary4.

Defendant has right to remove to federal court if they had subject matter jurisdiction in the first

place.

5.

No Removal for In-State Defendants in Diversity Only Cases

US original jurisdiction cases removablea.Arising under claims removable regardless citizenship of defendantb.

In State Defendant Rule: defendant's cannot be citizens of states removed

If Federal Question with state issues then court can keep or remand

If case has claim arising under and is joined with one or more non removal items entire case may

be removed and district court may determine all issues or may remand matters in which state law

dominates.

c.

1441 General Actions

Defendant files statement for grounds of removal and copy of all documents of lower court

proceedings.

a.

Must be filed 30 days after serviceb.

If new subject matter jurisdiction created then defendant has 1 year to remove

Prompt notice to all adverse parties and verification that removal is correctc.

1446 Procedures

Notes:

*Circumstances where you can remove 30 days after: filing amended complaint; new federal subject

matter jurisdiction

*Removal must take within 30 day of services

*Addition of new defendant does not reset 30 day rule of removal (Noble)

District court right to control all parties through servicea.

File copies with courtb.

Any defect other than SMJ must be made within 30 days of filingc.

Remand order cannot be appealed unless civil rights issued.If plaintiff seeks to add parties that would destroy SMJ court can permit and remand or deny.e.

1447 Procedure after removal

How a Defendant May Object to Plaintiffs Selection of ForumTraditional method was special appearance; defendant only able to challenge personal jurisdiction

Modern rule is Federal Rule 12

Abolishes difference between general and specific appearances by allowing defendant to raise several

defenses at once.

Definitions

Responsive Pleading: answer to pleading

Rule 12 Defenses and Objections(a) Time to Serve Responsive Pleading

(1) In General

(A) defendant must serve an answer

(i) 21 days of being served summons/complaint or

(ii) timely waives service within 60 days after request for waiver sent, or within 90 days if defendant

outside US.

12(4) Effects of a Motion

(A) if court denies motion responsive pleading served within 14 days after notice of court's action or

(B) if courts grants motion for more definite statement, responsive pleading served 14 days after served.



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12(b) How to Present Defenses

Every defense to claim for relief in any pleading must be asserted in responsive pleading if one required.

Party may assert following by motion:

(1) lack of SMJ

(2) lack of PJ

(3) improper venue

(4) insufficient process

(5) insufficient service of process(6) failure to state claim upon which relief can be granted

(7) failure to join party under Rule 19

Motion asserting any of these defenses must be made before pleading if responsive pleading is allowed.

No defense or objection is waived by joining it with one or more defenses or objections in a responsive

pleading or in a motion.

12(g) Joining Motions

(1) Right to Join

Motion under this rule may be joined with any other motion allowed by this rule.

(2) Limitation on Further Motions

Except as provided in Rule 12(h)(2) or (3) party that makes motion under this rule must not make

another motion under this rule raising a defense or objection that was available to the party but omitted

from its earlier motion.

12(h) Waving and Preserving Certain Defenses

(1) When Some are Waived

Party waives any defenses listed in Rule 12(b)(2)-(5) by

(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or

(B) failing to either:

(i) make it by motion under this rule

(3) Lack of Subject Matter Jurisdiction

If court lacks SMJ may dismiss at any time

12(i) Hearing Before Trial

If party moves any defense listed in Rule 12(b)(1)-(7) whether made by pleading or motion and motion

under 12 must be heard and decided before trial unless court orders deferral until trial.

Collateral and Direct Attacks on Personal Jurisdiction

Apply direct attack when wishes to attack personal jurisdiction before merits are decided. Disadvantages

is finding an attorney licensed to practice in jurisdiction.

Collateral attack is attacking personal jurisdiction after a default judgment has been entered. Risky,

because defendant unable to challenge case merits. Allows plaintiff to stay at litigate at home and save

travel expense)

*Can only challenge personal jurisdiction once under Doctrine of Res Judicata

Challenging Federal Subject Matter Jurisdiction

Defendant may challenge Rule 12(b)(1)

Or remand case 1447

Defendant can only litigate subject matter jurisdiction once.



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Federal Diversity Choice of Law

The Supremacy Clause Article IV 6

Shall be supreme law of the land

Choice of Law for Federal Court in Diversity

Judiciary Act 1989 (Rules of Decision Act)

"laws of several states except where constitution shall be regarded as rules of decision in civil actionsin the courts of the US, in cases where they apply."

Rules Enabling Act: gave judicial branch power to create FRCP.

Hanna Prong and Erie Prong

Apply Federal Rule on Point (Authority: REA, Supremacy Clause)

(I.g. FRCP)

Hanna Prong

Test

Validity: within delegated authority of REA which cannot abridge, enlarge, or modify anysubstantive right.

1.

Must be Arguably Procedural2.

Courts have never found invalid rule

On Point: was rule intending to govern or control issue at hand?3.

Analyze whether rule is on point (i.g. permit v require or forbid)

No Federal Rule on Point

Erie Prong

Test

Clearly substantive then apply state law1.

No clarity, apply outcome determinative test2.

If not outcome determinative apply federal provision

If Yes, look for countervailing and overriding federal interest that requires following federal law.3.

If yes, apply federal law

If no, apply state law4.

In applying balance test/OD test, consider twin aims of Erie to prevent

Forum shopping5.

Inequitable application of law6.

Note: Forward looking analysis

Deweerth Holding: When applying state law in federal court if state law is unclear predict what outcome

Claim Preclusion

Claim Preclusion/ res judicata (thing has been decided)1.

Affirmative defense raised by defendant in 2nd lawsuit.

Answer/Responsive Pleading: this claim is precluded because it has already been decided in

lawsuit #1.

Elements



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Both cases must involve same claim or cause of action1.

Majority View: single wrongful act defendant or arising from same transaction or occurrence.

Minority Test: Primary Rights Violated

Party or those in privity must be identical/configuration2.

Final judgment on merits3.

Issue Preclusion/collateral estoppel: will allow 2nd lawsuit but certain issues will be precluded.4.

How to Determine Same ClaimA.

Majority Rule

Plaintiffs single wrongful act1.

Primary Rights of plaintiffs theory2.

Minority Rule (Holding in Carter v Hinkle)

Same Claim or cause of action1.

Same parties in configuration2.

Valid final judgment on merits3.

Same Parties in ConfigurationA.

Claim Preclusion

Parties or Persons in Privity

Any party in privity will be bound by lawsuit. (representative, guardian, executor, fiducia1.

Substantive legal relationships between litigant and nonparty can justify binding nonparty.

(successive owners or contractual rights i.g. assignor/assignee)

2.

***Define first lawsuit by first lawsuit to reach judgment.

Valid, final judgment on meritsA.

Valid: court had valid personal and subject matter jurisdiction.a.

Final: all issues have been decidedb.

Merits: based on validity of the plaintiffs claim rather than proceduralc.

(i.g. dismissal)

***Can decide on default judgment and summary judgment

Rule 41

41(a)(I)(B): Effect: If voluntary dismissal without prejudice not on merits.

*parties can agree with prejudice

2nd voluntary dismissal dismissed on the merits.

41(b)

Involuntary Dismissal

(i.g.) Plaintiff had not proceeded timely

Assumption is with prejudice unless court order states otherwise

If dismissed for lack of jurisdiction (pj, smj) , improper venue, or failure to join party, not on

merits.

***majority of state courts lawsuit when on appeal is still considered final.



9/9

Semtech Case: reduces Rule 41 restrictions for dismissals

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