Main Civil Procedure Outline

Civil Procedure: Outline

1. Bring 2 # 2 pencils2. Review FRCP on Twen3. Must know names of S.C. cases because they contain the governing law.

a. Personal Jurisdictionb. WWV 1st case to set aside fairness and reasonableness factorsc. Calder vs. Jones = effects test

4. Do Not copy the entire Federal Rulea.


Table of Contents

1. CIVIL PROCEDURE: OUTLINE............................................................................................41.1 OVERVIEW..................................................................Error! Bookmark not defined.

1.1.1 US Constitutional Law that binds Federal Courts.......................................................41.2 INITIATING A LAWSUIT............................................................................................4

1.2.1 STATING THE CLAIM...........................................Error! Bookmark not defined.1.2.2 DEFENSES & OBJECTIONS:...................................................................................51.2.3 SUMMARY OF PLEADINGS.................................Error! Bookmark not defined.

1.3 DISCOVERY................................................................Error! Bookmark not defined.1.3.1 DISCOVERY............................................................Error! Bookmark not defined.

1.4 TRIAL, JUDGMENTS & ENFORCEMENTS OF JUDGMENTSError! Bookmark not defined.1.4.1 JUDGMENTS...........................................................Error! Bookmark not defined.

1.5 SUBJECT MATTER JURISDICTION...........................................................................51.5.1 GENERALLY.............................................................................................................51.5.2 FEDERAL QUESTION JURISDICTION..................................................................81.5.3 DIVERSITY JURISDICTION....................................................................................61.5.4 REMOVAL.................................................................................................................81.5.5 SUPPLEMENTAL JURISDICTION........................................................................50

1.6 TERRITORIAL JURISDICTION.................................................................................111.6.1 GENERALLY...........................................................Error! Bookmark not defined.1.6.2 PERSONAL JURISDICTION IN FEDERAL COURTSError! Bookmark not defined.1.6.3 PERSONAL JURISDICTION..................................................................................121.6.4 IN REM JURISDICTION.........................................Error! Bookmark not defined.1.6.5 QUASI IN REM JURISDICTION............................................................................221.6.6 WHEN MUST YOU GET PERSONAL JURISDICTION?.....................................23

1.7 VENUE & SERVICE....................................................Error! Bookmark not defined.1.7.1 VENUE.....................................................................................................................271.7.2 SERVICE..................................................................................................................29

1.8 RES JUDICATA...........................................................................................................371.8.1 GENERALLY...........................................................................................................39

1.9 JOINDER......................................................................................................................441.9.1 JOINDER..................................................................................................................44

1.10 PLEADINGS.................................................................................................................311.10.1 SUMMARY OF PLEADINGS............................................................................31

1.11 ERIE DOCTRINE: CHOICE OF LAWS......................................................................471.11.1 ERIE DOCTRINE................................................................................................47

1.12 APPENDIX...................................................................................................................501.12.1 APPENDIX A.......................................................................................................50

Kaysia Earley


1. CIVIL PROCEDURE: OUTLINE

1.1 INTRO TO AMERICAN COURTS

1.1.1 Court SystemA. Three requirements for a proper court (P.V.S.)

a. Subject Matter Jurisdiction: court’s authority to hear a dispute.b. Personal Jurisdiction: court’s authority to force a Defendant to appear in court to defend a casec. Venue: defines which court can hear a particular suit.

B. State Courtsa. State Supreme Courtb. Appellate Court (Intermediate; Court of Appeals)c. District Court (Trial Court; Circuit Court)

C. Federal Courts (Venues)a. US Supreme Court [1]b. US Court of Appeals [12]c. US District Court [94]

1.1.2 US Constitutional (Subject Matter Jurisdiction)A. Article III §2: limits types of cases Federal Courts can take:

a. Federal Question: Issues arising under Federal Law (US Constitution or Treaties) 28 U.S.C §1331b. Diversity: citizen of one state sues citizen of another state. 28 U.S.C §1332

1.2 INITIATING A LAWSUIT

1.2.1 LITIGATION PROCESSA. Pleading Phase

a. P files a lawsuit against the D.b. The complaint sets forth basic facts and the cause of actionc. P may assert multiple claims FRCP 18(a)d. P serves process (Notice) and D must answer each allegation.e. D may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” R-12(b)(6)

B. Discovery Phasea. Process of obtaining evidence from witnesses through court enforced procedures

C. Pretriala. Court ordered conference to cover relevant matter to planning the trialb. D may request summary judgment (judgment issued by a judge w/o a trial) for lack of evidence during

discovery.D. Trial

a. Voir dire- jury selectionE. Post-trial Motion

a. A request for a new trial by the losing partyF. Appeal

a. Losing party files an appeal for a new trialb. Motion for a new trial (MFNT): On motion, trial judge may modify a verdict in whole or in part, or

grant a new and further trial on all or part of the issues. [R-59] This must be against the weight of the evidence.

i. Reasons: 1. Irregularities in proceedings2. Misconduct of jury in deliberations

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3. Accident or surprise that prejudiced the outcome. 4. Verdict is against the weight of the evidence.

ii. Certiori: by writ of certiorari granted upon petition of any party, Supreme Court can take a case for review.

1.2.2 CIVIL PROCEDURE RULES: A. US Constitution

a. Article III- governs federal courtsb. 4th and 5th Amendment- Due Process

B. Federal Statutesa. 28 USC

C. Federal Rules Civil Procedure (FRCP)D. Local Rules

1.3 SUBJECT MATTER JURISDICTION

1.3.1 GENERALLYA. Summary: Fed. judicial power upon the particular court to hear the type of action involved:

a. Subject Matter Jurisdiction (F.D.S): i. Federal Question Jurisdiction [28 U.S.C. §1331]

ii. Diversity Jurisdiction [28 U.S.C. §1332]iii. Supplemental Jurisdiction [28 U.S.C. §1367][next semester]

b. Judicial power of states: States are courts of general jurisdiction. They have the power to hear any kind of action brought as long as they have PJ, SMJ and venue. Exceptions created by congressional acts. (e.g. bankruptcy, antitrust actions, SEA).

c. Judicial Power of the US: Federal courts are courts of limited jurisdiction having only the judicial power conferred on them by the US Constitution or Acts of Congress.

d. Constitutional Provisions: [Article III, §2] provides that the judicial power extend to: i. Federal Question Jurisdiction: Cases “arising under this Constitution, the law of the United

States, and treaties. ii. Diversity Jurisdiction: Controversies between citizens of different states, or between citizens

and foreign nationals. iii. US as a Party: cases to which US is a party. iv. B/W States: controversies between two or more states, or between a state and a citizen of another

state.

e. Removal: Motions to remand for lack of SMJ may be made any time prior to the final judgment.

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1.3.2 DIVERSITY JURISDICTIONA. GENERAL

a. DEFINITION: [28 U.S.C. §1332] Federal district courts have jurisdiction over actions where i. amount in controversy exceeds $75,000 (exclusive of interest and costs), and

ii. complete diversity of citizenship or alienage between the parties. b. Time diversity is determined: diversity exist at the commencement of the action.

B. TYPES OF DIVERSITY: a. Diversity of Citizenship: a citizen of one state sues a citizen of a different state. b. Diversity based on Alienage: a citizen of a state sues a foreign state or its subjects.c. Exceptions: federal courts declined to exercise jurisdiction, even when the parties satisfy the

requirements for diversity jurisdiction:i. certain in rem cases,

ii. probate cases or iii. domestic relations cases.

C. MINIMAL vs. COMPLETE DIVERSITYa. Minimal Diversity: Article III, §2 controversy is between citizens of different states. No requirement

that all P’s be diverse from all D’s.i. Rationale: The need to consolidate litigation into one place—more fair for insurance company

and more efficient gives rise to requirement for only minimum diversity. (Defendant must be diverse from at least one of the plaintiffs.)

b. Complete Diversity: All parties on one side of the action must be of different citizenship from all parties on the other side. Not required by §1332 but has been the interpretation from Strawbridge v. Curtiss; Mas v. Perry

i. Congress could amend U.S.C. 28 §1332 to mean “minimal diversity”, but it never has.

c. CITIZENSHIP TESTi. Natural Persons:

1. Citizenship means US citizen’s “domicile” the place where hea. resides b. with the intent to remain indefinitely.

2. People have ONLY 1 citizenship3. A person does not lose a domicile until he acquires a new one.

d. ALIENAGE JURISDICTION (pg 51)i. Article III, §2 says that federal courts have jurisdiction over cases between U.S. citizens and

foreign nationals/aliens. Mas v. Perry1. Alien + FL v. Alien +Alien= No Diversity Jurisdiction

ii. Suit is between two U.S. citizens with an alien added as an additional plaintiff or defendant. [28 U.S.C. §1332(a)(3)]

1. Alien + FL v. Alien +NY= Diversity Jurisdiction2. FL v. Alien= Diversity Jurisdiction

iii. If the foreigner is domiciled in a U.S. state- you first must be a citizen of the U.S. before you can be considered a citizen of a particular state.

1. Permanent residents are exceptions- they are considered citizen of state where domiciled.iv. It is possible to be a U.S. citizen but not a resident of any state if domicile is established abroad

20th Century Fox Film-Corp v. Taylor, 239 F. Supp. 913 (D.C.N.Y. 1965)- no fed court jurisdiction b/c defendant not domiciled in or a citizen of any state.

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e. Corporate Citizenship (pg 60)i. Dual Citizenship [28 U.S.C. §1332(c)(1)]: A corporation has dual citizenship:

1. State of its incorporation2. State in which it has its principal place of business

a. Determining “Principal Place of Business” i. “Nerve Center” test / “Place of Operations” test

1. CASE: Hertz v. Friend (pg. 60) –determining a corporation’s principal place of business the Court applied the “place of operations” test.

2. RULE: The Court reasoned that the word “place” as singular and implies a single place where the principal business is occurring.

f. Unincorporated Association: you accumulate the states of all of its members. Means if you have a national association, you can never have diversity.

g. Representative: e.g. of an estate or incompetent person, class actions, beneficiary = diversity is based on the represented.

D. AMOUNT IN CONTROVERSY (JURISDICTIONAL AMOUNT)a. Purpose: ensures that federal jurisdiction will only be invoked in “substantial” controversies. b. Amount: $75,000.01 excluding interest and costsc. Aggregation: A single P and single D can aggregate claims they have against each other. Multiple P’s

cannot aggregate claims against a single D or a single P’s claims against multiple D’s. i. Note: P may not aggregate several claims against several Ds to meet minimum unless Ds are

jointly liable. ii. Exception: Ps have a common and undivided interest (e.g. Ps are beneficiaries suing

administrator – probably would extend to injunctive relief)iii. Counterclaims: D’s counterclaims cannot be added to Ps action to meet minimum.

1. Removal: D cannot remove based on his counterclaim value. The original claim must exceed 75K. P can’t remove the counterclaim either because removal is only allowed for Ds.

d. Good Faith (St. Paul Mercury) Test: i. The sum claimed by the P is made in good faith, and

ii. Court must be able to rule to a legal certainty that the amount could be more than $75,000. NOTE: Ct does not have to listen to the parties.

iii. Diefenthal v. C.A.B- The Diefenthals (P) purchased first class tickets aboard a flight on Eastern Airlines. After they boarded the flight, P were told that the smoking section in first class was filled. P alleged the flight attendant treated them "brusquely," (blunt or harsh manner of speech) causing them extreme embarrassment and emotional distress. P sought $50,000 (*AIC before it increased to $75,000) in damages.

1. RULE: The court could not "conceive by the wildest stretch of the imagination how there could be $10,000.00 damage on the basis of what [the Diefenthals] allege." Dismissed for lack of DJ.

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1.3.3 FEDERAL QUESTION JURISDICTION

A. 28 U.S.C. §1331 : civil actions that arise under the Constitution (federal). a. Federal law must be an essential part of P’s cause of action. P’s ability to recover must depend in whole

or substantial part on some federal law. An incidental or indirect involvement of federal law is not sufficient.

b. State law claim w/ a federal question:i. Grable & Sons v. Darue Engineering: The IRS seized property owned by Grable (P) and gave P

notice by certified mail before selling the property to Darue. P did not exercise its right to redeem the property within 180 days of the sale even though P was given notice of the sale. P sued in state court, claiming D's title was invalid because federal law required the IRS to give P notice of the sale by personal service, not certified mail.

1. RULE: The interpretation of federal tax law belonged in federal court and not the state court where it was filed.

2. Factors considered in determining jurisdiction: a. serious federal interest in claiming the advantages of a federal forumb. potential for disrupting the balance between state and federal courtc. impact on federal court docket

B. ARTICLE III § 2: Osborn v. Bank of the United States- established grant of jurisdiction (cases arising under federal law) over cases as long as a question of federal statutory or constitutional law “forms an ingredient”. “Ingredient” can be found in P’s complaint or D’s answer.

C. FEDERAL DEFENSE- Not sufficient. Federal question must appear on P’s complaint. Federal defenses from D don’t make it a federal question.

a. CASE: Louisville & Nashville Railroad Co. v. Mottley (well pleaded complaint – federal defense not enough) – RULE: allegation in the complaint that a defense will be based on an Act of Congress is not sufficient to sustain federal question jurisdiction.

i. Why? Federal courts are courts of limited jurisdiction. Constitution is a balance of power b/w states and federal government.

D. JURISDICTIONAL AMOUNT: there is no jurisdictional amount requirement for bringing federal question cases to federal court.

E. EXCLUSIVE FEDERAL JURISDICTION: Congress require certain cases to be brought in federal court (i.e., Antitrust cases and Securities Exchange Act cases.)

F. COUNTER-CLAIMS- NOT considered when determining federal jurisdiction. (Holmes Group v. Vornado Air)

G. JUSTICE HOLMES CREATION TEST (pg 100)- determines whether a case “arises under” federal law when it creates the cause of action”

i. Cannot invoke the original jurisdiction of the federal courts either by anticipating a federal defense or importing a federal question into his complaint that is not essential to his case.

1. The mere presence of a federal issue in a state-created cause of action does not automatically confer federal question jurisdiction, it must depend in part on “an evaluation of the nature of the federal interest at stake”: whether it is sufficiently important to require a federal trial forum (Merrell Dow Pharmaceuticals, Inc. v. Thompson)

H. SUBJECT MATTER JURISDICTION CATEGORY: a case only needs to meet one category of SMJ (I.E., D’s and P’s can be from the same state if they have Federal Question Jurisdiction).

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1.3.4 REMOVAL : (Not Constitutional)- Statutory provisionA. Concurrent Jurisdiction: State and Federal courts can hear diversity cases.B. Removal Jurisdiction: In most cases in which “federal question” or “diversity” existed at time action was filed,

but P chose to sue in state court, D may compel removal of action to federal court. (Removed to the district court (within the state’s district) where the suit is brought)

a. 28 U.S.C. §1441 : any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

b. Purpose: removal jurisdiction is meant to provide an impartial court when D is sued away from home.

c. Who May Remove?: removal is vested entirely with D. Where P sues D originally in state court and D counterclaims for a much larger amount, P still cannot remove.

i. Multiple Ds: where there are multiple Ds in the action, they jointly have the right to removal. All Ds properly joined must agree to removal. If any D doesn’t, the action cannot be removed.

d. Removal is Automatic: Once the state court has been notified, the case is held in fed. court until it determines the validity of subject matter jurisdiction.

e. Motions to remand for non-jurisdictional objections (i.e., late notice of removal, failure of defendants to agree to removal) must be raised within 30 days after removal. §1446(b)(1)

f. When Must a Case Be Removed?: D must file notice of removal within 30 days after D is served in state action. [28 U.S.C. §1446]

g. No Reverse Removal: if P files a case in Fed. Court (w/ jurisdiction), D CAN NOT request remand to state court.

h. Waiver Provision: Objections other than lack of SMJ must be made within thirty days after filing the notice of removal. If no Motion is made within time frame, objection is waived. §1447(c)

i. Effect on PJ, SMJ, and Venuei. Venue: § 1391. Federal cases INITIALLY must be filed in a district where the D resides or

where events giving rise to the complaint took place. *Does not apply to removed cases. (HYPO- p 63 Glannon Supplement)

C. Removal of Exclusive Federal Jurisdiction casesa. 28 U.S.C. §1441(f) The court to which a civil action is removed under this section is not precluded from

hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim.

i. Since the court has jurisdiction over the claim arising under federal law, it will also have supplemental jurisdiction over a state law claim (if the claim presents both issues).

D. Entire Case is removeda. Statute: 28 U.S.C. §1441(c)- Whenever a separate and independent claim or cause of action within the

jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

i. Only § 1331 cases - this ensures a P will not join unrelated state law claims to defeat removal since it can be removed the Federal court can remand the state cause of action.

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ii. Why not § 1332 cases? This does not apply to Diversity cases b/c if P has more than one cause of action against D, and one cause of action does not meet 75K, that is ok b/c claims can be aggregated.

b. EXCEPTIONS: i. Diversity (§1332) cases in D’s home state: Diversity actions in which any D properly joined and

served is a citizen of the state in which the action is filed are not removable. 28 U.S.C. §1441(b) Doesn’t matter if other D’s are not from the same state (though this seems to screw them).

ii. Amendments: Case can be removed to Federal court once the case “becomes removable”. D has 30 days after receiving an amended pleading from P to remove to Fed. ct. 28 U.S.C. §1446 (b), para.

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1.4 PERSONAL JURISDICTION ESSAY APPROACH

A. Mention the relationship between minimum contacts (i.e., specific and general) then choose the best one.

B. Apply: Long-Arm Statue (State Court) ; OR 4K(1)(a) (Federal Court)THEN

C. Constitution Test- 14th Amendment (Due Process)a. Minimum Contacts (International Shoe): List all contacts from forum state

i. Specific Jurisdiction Analysis- defendant’s deliberate contacts w/ the forum state1. Purposefully availment of D of the forum state2. Unilateral activity of someone other than defendant (WWV:Robinsons)3. Forseeability: (Subject to suit at the forum state) (WWV)

a. Products Liability/ Negligence/ Stream of commerce- (WWV) (Asahi) (Nicastro: more direct effort from D)

4. Different kinds of casesa. Breach of contracts (Burger King) (McGee)b. Intentional Torts- Libel (Calder v. Jones) (Keeton v. Hustler) (Bo Jackson)

i. Zippo Testii. Effects Test

c. Property- belonging to the D in the forum state- (Shaffer v. Heitner)OR

ii. General Jurisdiction Analysis- Contacts are unrelated to D’s contact w/ forum state but Systematic and continuous (Perkins v. Benguet) contrast to Goodyear and Helicopteros

1. “Home” domicile of Defendant

ANDb. Fairness & Reasonableness Factors

i. B urden on the D.ii. L aw: What forum’s law?

iii. I nterest of the State: in providing a forum for & protecting its citizens.iv. M ultiplicity of Suits: Will they all be resolved?

v. F orum: Forum state’s interest in adjudicating the dispute. Fair & convenient?vi. E vidence: Where is the bulk of the evidence?

vii. W itnesses: Where are the witnesses?

c. Asahi: Purposeful Availmenti. O’Connor (Defendant’s side)-stream of commerce plus additional factors (DACM)

1. Designing a product for a forum state, 2. advertising to a forum state, 3. customer service in the forum state, or 4. marketing the product through sales agents in the forum state.

ii. Brennan (Plantiff’s side)- mere awareness/ forseeability of a lawsuit d. Nicastro

i. Ginsburg1. Jurisdiction: foreign manufacturer specifically targeted the U.S. market, not individual

states — (consistent w/ the fundamental fairness under the due process).ii. Kennedy

1. No jurisdiction: product sold in the state was based on the activity of third persons and not the deliberate conduct of the defendant.

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1.4.1 PERSONAL JURISDICTIONA. Summary: the state has a connection with the persons or property involved in the action such that its courts may

determine the controversy. B. Ways courts can assert PJ:

a. In personam – ct has power to render judgment b/c of a person’s presence in the state’s territory or citizenship there

b. In rem – court has power to determine fate of property in territory; (Schaffer v. Heitner) i. any damages in excess of the attached property’s value would not be collected.

ii. Ct first issues writ of attachment on property, then adjudicatesc. Quasi-in-rem – Court renders judgment for or against person, but recovery limited to value of property

w/in jurisdiction.i. Property doesn’t necessarily need to be related to claim; can be served only to get jurisdiction,

and, if necessary, fundsC. Jurisdiction conferred on Federal Courts

a. Limited by Due Process clause of 14th Amendment: Satisfied by showing Int’l Shoe contacts with the US as a whole. Usually very easy to meet. U.S. Const. Amendment V. No person shall . . . be deprived of life, liberty, or property, without due process of law . . .

b. 4(k)- Federal Long Arm: Congress has only given federal courts the following poweri. R-4(k)(1)(A) A party is amenable to federal suit wherever the party would be subject to suit by

a court of the state in which the district court sits. 1. Exception: R-4(k)(1)(B) 100 mile bulge rule - narrow provision allowing federal court

to assert jurisdiction over a party under Rule 14 (impleader) or Rule 19 (necessary party) and is served within a judicial district of US not more than 100 miles from place from which summons issues. R-4(k)(1)(C)

2. R-4(k) (1)(D) authorized by statute of US. ii. FALLBACK PROVISION: R-4(k)(2) no single state would have PJ, but there are sufficient

contacts w/ US. c. Establishing PJ through the state (e.g. domicile, long-arm statute, tagging, etc.)

i. Make sure the state court’s constitution allows it or what is available in the state’s long arm statutes.

1.4.2 IN PERSONAM JURISDICTION A. Summary: authority over parties and the power to bind them personally.

a. Every cause of action: Personal jurisdiction is required for every individual COA brought against D. D can make motions to dismiss for lack of PJ for each COA.

b. Every joined party: PJ must be satisfied for anyone joined or dragged into the suit. B. Two Types of PJ:

d. General – jurisdiction based on the continuous activities of a D in a forum - can be traced to the systematic and continuous notions from (Shoe)(Hess) (Goodyear)

i. person can be sued in that forum on any claim, even one unrelated to in-state activities.ii. COA arises out of D’s contacts w/ forum state

e. Specific – specific claims that arise out of D’s deliberate in-state contacts. The following three requirements must be satisfied: (p 240)

i. D must have contacts in the state1. D purposefully availed themselves of conducting business in a forum state.2. Internet and “stream of commerce” contacts unclear

ii. Claims arise from in-state activities w/ contacts; andiii. The exercise of PJ would meet Fairness Doctrine

C. “MINIMUM CONTACTS” THEORY

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a. SPECIFIC JURISDICTION: i. Minimum Contacts: a party (individual & corporations) conducts activity within the state,

(enjoys the benefits and protection of the laws of that state) it may incur obligations within that sate.

ii. The exercise of PJ should not offend traditional notions of fair play and substantial justice. (Shoe)

iii. International Shoe (minimum contacts test)1. RULE: To find in personam jurisdiction

a. defendant must have some minimum contact with the forum state and2. SUMMARY: If a company is enjoying the benefits of the state, that gives them an

obligation to return there if there is a problem to answer for causes of action related to your previous actions in the forum.

3. If a D is not present within the forum, due process requires that he have certain minimum contacts with it so as to not offend traditional notions of fair play and substantial justice

b. Factors to consider for minimum contactsi. solicitation of businessii. forseeability of jurisdiction being imposediii. convenience for defendant, relative convenienceiv. voluntary association with statev. relatedness of claim to activities within the state (specific juris)vi. sovereignty, choice of law

i. SUFFICIENT CONTACTS FOUND1. McGee v. International Life Insurance Co.: “single or isolated activities” related to the

controversy could support personal jurisdictiona. ISSUE: Does mere solicitation by mail to residents constitute sufficient contact

with a state to support in PJ? Yes. b. NOTE: McGee is different than Int. Shoe because it is not about political power

of the state. It is about convenience and fairness. i. What is the burden on P to go to a different forum? Heavy on poor CA

resident.ii. What is the burden on D going to CA? Rich insurance company can

afford it.iii. Where are the witnesses located? Probably CA. iv. Does forum state have an interest in taking jurisdiction? CA wants to

protect its citizens. v. Which is the better place to apply the law? CA is probably better at

applying CA law than TX. c. Holding: There was no office or systematic or continuous contacts in CA, and

whole relationship was through the mail but, there were still several factors satisfied …

1. Also, jurisdiction is foreseeable. 2. TX interest isn’t as big as California’s here. 3. D chose to insure CA resident, 4. convenience—witnesses and evidence are in CA.

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5. Burger King: The Supreme Court concluded that personal jurisdiction over Rudzewicz was constitutional, finding that there were enough Florida contacts related to the controversy to satisfy the test.

ii. World-Wide Volkswagen Corp. v. Woodson : mere presence of D’s product in OK does not meet minimum contacts

1. ISSUE: Is foreseeability that product could injure a particular state sufficient contact to justify that state’s exercise of personal jurisdiction over product’s seller, located in a different state? No.

2. RULE: To exercise PJ over D, the state must have minimum contacts w/ D. This protects D from unfair and inconvenient litigation.

iii. Asahi Metal Industry v. Superior Court (NO PJ: Stream of Commerce)1. FACTS: Zurcher injured in motorcycle accident b/c of defective tire. Zurcher sued

Cheng Shin (tube maker) who impleaded Asahi (manufacturer of tube’s valve system). 2. RESULT:

a. Brennan’s Approach : McGee factors are enough. P put goods into the stream of commerce flowing into the forum state. Foreseeability was enough. You intend the consequences of your action if you know your actions will result in the product going into the forum state.

b. O’Connor Approach : Foreseeability + other factors (DACM)i. Designing a product for a forum state,

ii. advertising to a forum state, iii. customer service in the forum state, or iv. marketing the product through sales agents in the forum state.

c. RULING: NO PJ, unreasonable considering the severe burdens on P of defending in a foreign legal state. (they should have the case in Taiwan or Japan). NOTE: one way of thinking about this is that 8 justices did not find McGee factors satisfied. This is strange b/c McGee was meant to broaden the scope of PJ.

GENERAL JURISDICTIONi. the D has a continuous and systematic, ongoing and intense relationship with the forum. Not

unreasonable or unfair for asking the D to stand and defend in the forum even under disputes that have nothing to do with their actions in the forum.

ii. bar is HIGH for example, business trips and negotiations in, and subsantial purchases from, forum state were not enough for general jurisdiction over int’l corp (Helicopteros)

iii. Perkins v. Benquet Consolidated Mining (PJ: in personam based off tagging a corporate agent)

3. FACTS: Perkins (P) brought action in personam against mining company (D) While D’s president was in Ohio on business, P served summons. D moved to quash service of summons on grounds that COA arose in Philippines, not Ohio and the action did not relate to D’s corporate activities in Ohio.

4. RULE: If corporation carries on “continuous and systematic” corporate activities in the state, can you get in personam jurisdiction over COAs that did not arise from those activities and did not occur in the forum state? Yes.

iv. jurisdiction based on the continuous activities of a D in a forum - can be traced to the systematic and continuous notions from Shoe

v. General vs. Specific:5. General

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a. Requirement: D must have “continuous and systematic” contacts w/ the forum state + “Fairness Doctrine”

b. Personal Jurisdiction: Any claim P has against D6. Specific

a. Requirement: Each claim must arise out of D’s deliberate contacts w/ the forum (“minimum contacts”) + “Fairness Doctrine”

b. Personal Jurisdiction: Only claims arising out of D’s in-state contacts

vi. CASE: Burnham v. Superior Court (PJ: tagging is still viable to give rise to General Jurisdiction) - husband tagged in Calf. While visiting children and on bsns. (Scalia's conventionality test)

1.5 Alternate Ways of Obtaining Personal Jurisdiction

1.5.1 “TRANSIENT (Temporary) PRESENCE” : A court may obtain jurisdiction over a nonresident who is served while temporarily in the forum on an issue unrelated to the forum.

A. Three Bases: a. Tagging – D’s presence in the state combined w/ personal service of process.b. Domicile – D’s status as a domiciliary (D resides in state with intent to remain indefinitely)c. Consent – implied or express consent to jurisdiction.

B. Traditional Bases Defineda. TAGGING

i. Summary: Service of process (summons and complaint) on a D that is physically present within the state is a constitutionally sufficient assert jurisdiction.

1. Exception: people entering the state to make “special appearances” for the sole purpose of challenging the court’s jurisdiction. (they are immune from tagging for other actions)

a. Why is this okay? Brennan: you are getting the benefits of the state. That gives rise to some responsibilities. Scalia: tagging is okay b/c it was ok at the time of the 14th amendment (Penoyer) and b/c it is accepted by the states in general.

b. Service Must be made while individual is within the Statei. Burnham v. Superior Court (1990)

ii. Facts: Burnham went to CA on business but also went to see his children served by wife for divorce

iii. The majority thought service while in the forum state is always sufficient, and never violates notions of “fair play”

c. Immunity: parties, witnesses, and attorneys coming into the state in connection with a different (federal or state) suit

b. DOMICILEi. Person: This is held to be sufficient “contact” between him and the state of his domicile to permit

personal jurisdiction over him in that state, even when he is physically beyond its borders. ii. Corporations: domicile for a corporation is its legal home, the place where it is incorporated.

This is held to be sufficient contact between it and the state of its domicile to permit personal jurisdiction over it, even for actions taken by it beyond the state’s borders.

c. ACTS DONE IN STATE

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i. Summary: State can exercise jurisdiction pursuant to a long arm statute saying that if a party performs certain acts in the state, the state can exercise jurisdiction.

ii. Common types: “doing business” in the state, “committing a tortious act” in the state, “breaching a K” in the state, etc.

1) Implied Consenta) Hess (MA) v. Pawlowski (PA)

(1) A nonresident who performs certain acts within the state are deemed to consent. (Hess) (constitutional.) Still need notice of the law suit!

(2) Is there an appropriate long arm statute here? Is the application constitutional?(a) there is no real consent going on in these cases. What’s really happening is that there’s a quid pro

quo going on. So why not make that the rule?...[See Intl. Shoe]

2) Interneta) The “Zippo” test does to Internet cases what other cases have done to other industries. You might use

“stream of commerce” for manufacturing; with Internet stuff, you use Zippo. b) Zippo proposes that there is a spectrum of websites from “passive” to “active”. c) Active websites sell things, while passive websites just show you stuff. There’s no personal jurisdiction

if a site is passive. There is personal jurisdiction if the site is active. d) Internet is usually intermediate and you must do a factual analysis as to the level of interactivity of the

site and the jurisdictional consequences that follow.

3) Libela) Keaton v. Hustler—case for libel against Hustler. Brought in NH because that’s the only state where the

SOL still runs. (US SC)i) Issue: Is newspaper/magazine circulation enough for PJ? ii) J. White Holding: Yes. There is PJ, at least SPJ. But the contacts may not be enough for GPJ.

(1) These are less extensive contacts than in Perkins.b) Look to where the injury occurred and where D could expect the injury to occurc) Keaton v. Hustler: the injury arose out of activity in NH

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1) Specific Jurisdiction: Cases in which many factors exist but relatedness to claim is most improtant factor. Claim must arise out of activities that formed the minimum contacts in the state.

D must purposefully avail itself to meet minimum contactsa) Hanson v. Denckla (1958): Limits on Int. Shoe

i) Facts: Mom left money to three daughters in her will. Trust goes to one daughter. Rest of estate is left to remaining two daughters. Non trust receiving daughters (K and D) sue Elizabeth in Florida, for the amount in the trust--claiming that trust was not set up right so shouldn’t go to her. The trustee is brought in as a necessary party (Rule 19). Elizabeth loses, and then collaterally attacks the judgment in DE claiming that Florida had no right to assert jurisdiction over a DE trustee.

ii) Holding: No minimum contacts because:(1) The trustee bank had never done any other business in FL(2) Cause of action arose out of business done in PA not FL, it merely continued when the mom moved to FL

(a) On the other hand: letters were sent to FL, suit was potentially foreseeable in FL, the client did live in FL should trustees be treated specially?

iii) Big Message: “There must be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus involving the benefit and protection of its law”(1) The unilateral activity of those claiming some relationship with the D are not enough to

purposefully availb) Kulko v. CA Superior Ct.

i) Facts: Ex husband and wife have joint custody. Husband sends kid to CA on one way ticket. He stops paying alimony. Can he be sued in CA? He sent kid to CA but didn’t avail himself of CA.

ii) Holding: This doesn’t meet minimum contacts(1) P could have used the Uniform Reciprocal Enforcement of Support act(2) Distinguished from McGee because there the insured would have been severely disadvantaged if they

couldn’t bring suit in CA

Stream of Commerce—Products sold in a forum may be enough contacts for specific jurisdiction.c) Grey (IL) v. Titan (OH) and American Radiator (PA) in IL court (1961).

i) Facts: Titan manufactures safety valves used in AR heaters. AR assembles in PA. Grey buys a radiator from AR which injures her in IL She sues both. Titan appears specially to challenge PJ claiming

(a) the IL LA statute doesn’t apply, and if it does, (b) it’s application is unconstitutional.

(2) The statute claims that a tortious act within the state allows jurisdiction over the tortfeasor.ii) Issue: What is the tortious act (putting valve in heater or the explosion)?iii) Holding: Where the injury occurs is where the tort happens.

(a) (If not the S of L would start running before the injury even occurs—it might run out before the injury!!!)

(b) Some states will say you actually have to be in the state(c) Some states (NY) state explicitly that the D doesn’t have to be in the state to commit an act

(2) Application is constitutional because(a) Titan receives benefits for selling in IL (marketing of hot water heaters)(b) state sovereignty (if you reject juris. over Titan P may be screwed because AR will claim it is all

Titan’s fault) and(c) judicial economy (why two suits if it can be settled in one?) (No other state’s law is undermined by

asserting juris. Here)(d) It’s foreseeable that Titan’s products end up in IL

iv) Message: If you put something into the stream of commerce you are submitting to specific jurisdiction and must answer for it wherever it ends up.

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d) World Wide Volkswagen v. Woodson (1980)i) Facts: The Robinsons (NY) sue Audi (Gmy), WWV (gmy), WWV Dealer (NY), and Seaway (NY) in

Oklahoma state court. They buy a car in NY and drive it to AZ where they are moving. They get into an accident in OK. Maybe they decide to sue in OK state court because of high jury verdicts, and sue NY parties to avoid federal court. OK interprets LA as a sky’s the limit statute—even though that’s not what it says. (WWV v. Woodson is case where WWV and Seaway sue OK judge for grossly misjudging by allowing PJ over them.)

ii) Is jurisdiction constitutional? Int’s company should foresee that cars will go all over the country. Plaintiff’s do have major interests (currently in OK), but we care about defendant’s interest. If something is foreseeable, there is jurisdiction over it. However, it is not fair to drag NY dealers into OK. We don’t want surprising law applied to them. See BK.

iii) Holding: No PJ. (1) what’s important is that the D’s conduct and connection with the forum state are such that he

should reasonably anticipate being haled into court there(a) ‘The foreseeability that is critical to due process is not the mere likelihood that a product will

find its way into the forum state’iv) Message: We’re only interested in defendant’s relationship to forum. We can’t pull NY companies into OK.

(Pendulum starts swinging back to Pennoyer.) (1) Where stream of commerce cases are broken by consumer, no jurisdiction. (2) Direct S of C cases might still be subject to jurisdiction. (3) However, if a consumer brings product to a new area, the stream is broken and can’t get

jurisdiction unilateral activity of the P doesn’t cut it!(4) Chattel as the agent: the court doesn’t want the product to be a roaming agent for service of process

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2) General Jurisdiciton: Cases in which factors are enough to support jurisdiction that is not related to a specific claim (presence, domicile, continous and systematic contacts (doing business maybe, depends). These types of contacts allow for jurisdiction regarding any claim.GPJ requires systemtatic and continuous contact

Burnham v. Superior Ct:(Dicta ) The “continuous and systematic” contacts rule for personal jurisdiction applies to corporations, not to people

a) Perkins v. Benguet (1952)i) Philippine company suspends mining during WWII but does all administrative business in Ohio during war.

Lawsuit brought to collect dividends on stock. The claim is not related to company’s specific activity in Ohio. Can general jurisdiction be asserted over the company allowing for the suit?

ii) Message/Holding: Yes. Ohio has the power to adjudicate any case dealing with the company because of the company’s systematic and continuous contacts with the state. This sounds like Doing Business Jurisdiction exists, and general and systematic contacts are enough for general juris.

Just making regular purchases within a state is not enough for GPJClaims that relate to but don’t arise from instate action may or may not be subject to more stringent requirements of GPJ-In Helicol the court said the actions were merely related to in-state actions and subjected them to Perkins test. But the court didn’t definitively say this was necessary.

b) Helicopteros v. Hall (1984)—US Supreme Court—DBJ is greatly limited (may have to beas extensive as Perkins) and parent/subsidiary jurisdiction is repudiated.i) Facts: Helicopteros (Columbian co) is running flights for Peruvian subsidiary of American company that is a

subsidiary of a US Company. Three people working for the Peruvian co are killed. Their families want to sue in the US, even though the K Helicopteros and Peruvian Co says that all law suits will be settled in Peruvian courts. The forum provision was only for signees of the contract. Ps are not signees. (1) Ps sue in TX because that is the only state with any contacts. (2) TX has a long arm statute declaring jurisdiction over any foreign corp doing business in the state for

claims arising out of the business. (a) Plaintiffs argue that the long arm applies (even though the deaths occurred in Peru and deaths have

nothing to do with the business that was done by Helicol in TX).ii) Holding: In spite of the fact that the LA statute doesn’t seem applicable, the TX SC construes it as being

applicable (due process is the limit) and asserts jurisdiction. (1) US SC hears the case. It can’t rule on state law, but rules that the State LA is unconstitutional in its

application over Helicol. (a) Contacts are not enough for general jurisdiction and specific jurisdiction is also not appropriate

because claim did not arise out of contacts in the state(i) One trip to TX by the Chief Exectutive is not systematic or continuous(ii) Drawing checks on a TX bank is the product of a unilateral activity of another party(iii) Training trips standing alone are not dispositive (iv) Mere purchases are not enough

iii) Message: In order to have general jurisdiction (DBJ) , must have REALLY substantial and continuous contacts. From here on out, the jurisdiction claimed will be specific. DBJ is construed VERY narrowly or else thrown out entirely. Here, Contacts are not big enough to trump D’s convenience interests.

iv) Dissent Stricter standards of GPJ should not apply: thinks that jurisdiction is appropriate because TX should be able to regulate helicopters sold within the state. If not accountable in TX, where else is this company going to be accountable—this is important if Americans are dying from them.

The Reasonableness Standard and (perhaps) an New Minimum for Minimum Contacts

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5) Asahi v. Sup. Ct. of California (1987) (this is post Helicol--84)c) Facts: Zurcher drives a honda motorcycle which blows up in CA. He claims it’s the fault of the tire people and

sues Cheng Shan (Taiwan). They claim it’s the fault of the valve maker, and implead Asahi (Japan.) Zurcher settles with Chengshan so the case is Chengshan v. Asahi in CA State court. CA has a sky’s the limit LA statute, so it applies to Asahi. If Grey is still good law, jurisdiction should be fine (no consumer broke the stream of commerce so WWV shouldn’t necessarily apply.) But maybe if CA can assert jurisdiction, Taiwanese or Japanese law should apply.

d) Contacts: Over five year period Asahi shipped over a million valves to Cheng Shin. Cheng Shin sells all over the world, 20% of US sales are in CA. Asahi knew its valves would end up in the US, and CA.

(1) But: no direct sales in CA, no offices or agents, did not control the distribution.iii) 5 out of 9 justices ruled this did meet minimum contacts

(1) Asahi benefited economically from the sales, and Asahi knew its products were regularly sold in CA(a) This is a big difference from one customer fortuitously bringing a product into a forum state

(2) 4 out of 9 (O’Connor dissent) thought this was not purposefully availing(a) placing products into the stream of commerce without more is not enough(b) you’d have to advertise, or design the product for use in the state etc.

(3) And the burden on D of defending in CA is great(a) This seems like it would only apply to foreign (international) corps

iv) Cuts plaintiff, state, efficiency interests back into equation (in spite of WWV). Maybe reasonableness is a substitute for due process for foreigners (the question of due process for foreigners was raised by Helicol)

v) Ways to interpret Reasonableness:(1) if there’s min. contacts also ask about reasonableness

i. reasonableness applies to everyoneii. reasonableness applies to aliens only

b. or reasonableness is separatei. even w/o min. contacts it can sometimes be reasonable to assert jurisdiction

c. Also, people aren’t sure if reasonableness applies to SPJ only

e) Options for thinking about Asahi:1) S of C can lead to cases where contacts are too small to count2) reasonableness gets rid of S of C in the context of foreign cos. 3) reasonableness is what is nec. for minimum contacts in general 4) new possibility—national contacts might be okay for jurisdiction. (court was trying to create a

reasonableness test to establish national jurisdiction, when a company can’t be brought anywhere else in country.)

1.6 Choice of Law clauses/Contracts in general as a basis for PJ

6) Burger King v. Rudzewicz (1985) A contract can be a contact making exercise of PJ possiblec) Facts: K included choice of law clause declaring that Florida law governs. BK probably didn’t know if choice of

forum clause would be enforced or else made a mistake and assumed that the choice of law clause would be enough to guarantee Florida as the forum. No long arm statute was asked about.

d) Primary issue: Does choice of law clause mean that jursidiction in FL was foreseeable to R? Did R expect to litigate in FL? R knew the main office was in Florida, and attended BKU in FL. States have the right to create laws for their citizens. We don’t want choice of law to be surprising.

e) Holding: This contractual relationship was enough for PJf) Reasoning:

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ii) Designation of FL law: by signing a contract with this provision, the D has purposefully availed himself of the forum states laws

(a) State with controlling law (center of gravity) is not automatically entitled to PJ (Hanson), but the rule differs when choice of law stems from a contract

1.6.1 JURISDICTION OVER PROPERTYA. Shaffer overturns Harris in stating that all assertions of state jurisdiction must fall under Shoe.

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a. Minimum Contacts Requirement: may only be asserted when the interests of the persons in the property seized have sufficient contacts, ties, or relations to the state.

1.6.2 ‘True’ IN REM JURISDICTION: A. Seeks to determine the ownership of the title of specific property against all possible claimants, known and

unknown. B. A court may exercise in rem jurisdiction over an item of property located within the state. (i.e, State v. 50 cans of

tuna; State condemning the ‘property’ as unsafe).a. Location of property: tangible property such as real estate is where it is physically present. Intangible

property is deemed located in the state in which the transaction creating the property occurred.

1.6.3 QUASI IN REM JURISDICTION: A. Type I: seeks to secure a preexisting claim in the subject property and to extinguish or establish determine the

rights rightful ownership of specific property (i.e., foreclosure dispute, inherited property dispute)B. ‘Attachment’ Type II: If P could not get in personam jurisdiction over D, he could bring D’s assets before the

court and get quasi in rem jurisdiction over the dispute, limited to the value of the property before it (i.e., property does not arise out of the COA)

a. Sovereignty Theory: state has power over anything it can grab within its borders at the time of adjudication. Under Pennoyer, if I committed a tort in OR and then left, OR could not grab me. Problem: Under Pennoyer, there were problems getting personal jurisdiction over D’s past actions.

i. CASE: Pennoyer v. Neff (NO PJ: state has control over things within its border)1. ANALYSIS: is constructive notice by publication on a nonresident adequate for personal

jurisdiction? No. 2. ANALYSIS 2:

a. PJ = D must be personally served w/ process while actually present in the state.b. Rem or quasi in rem jurisdiction = property must be legally attached before the

instigation of the suit (serves as constructive notice) c. voluntary appearance of D. (Consent)

3. RULE: P was never served while in the state, nor had his land been attached before the suit started. The court never acquired jurisdiction of any kind over P.

C. Other Types of Attachmenta. Post-judgment: Garnishment- used to collect on a judgment that the defendant refuses to pay (i.e.,

wages)b. Prejudgment: Attachment for Security- removes the defendant’s control over assets and ensures that

they are available to satisfy a judgment in the event the P wins the case.

c. CASE: Shaffer v. Heitner (NO PJ: property alone does not establish minimum contacts)i. RULE: Does minimum contacts standard apply to exercise of in rem jurisdiction by a state?

Yes. Since the stock is totally unrelated to COA and P has failed to allege any type of contacts required by minimum contacts standard, DE cannot exercise jurisdiction over case.

ii. RULE: quasi in rem jurisdiction w/o minimum contacts might still be appropriate in case of real (tangible) property.

iii. TWO INTERPRETATIONS: 1. Quasi in rem actions are dead b/c of minimum contacts test of International Shoe. 2. There just was no property in DE because stock should be considered to be everywhere.

iv. NOTE: Brennan thinks this case should have come out differently b/c there were minimum contacts (officers worked for a company incorporated in DE; DE law applied; McGee factors would suggest it is a convenient place for litigation.

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1.7 NOTICE AND SERVICE OF PROCESS

1.7.1 NOTICE1. Reason for Service of Process (i.e., Subpoena)

a. Formally asserts the court’s authority over the defendantb. Informs the defendant of the case so he can prepare to defend itc. Service of process is the method by which you notify someone about a lawsuit. Process is the papers

themselves.2. Constitution has min reqs for notice, but state procedural law (or fed procedural law if in fed ct) might require more

notice two-part test:a. statute or rule requirement (FRCP); anda. Constitution requirement (Due Process: constraints on methods of service of process ).

i. Fifth Amendment- Federal Courtsii. Fourteenth Amendment- State Courts

3. Constitutional Req of reasonable notice (based on due process clause)a. Notice must (1) be reasonably certain to inform those affected OR (2) if reasonable certainty is

impossible given the circumstances, it cannot be substantially less likely to give notice than other reasonable and customary means. (Mullane v Central Hanover Bank & Trust Co.)

i. “reasonable notice given the circumstance” ii. Opportunity to be heard

4. Reasonable notice given the circumstancesa. Mullane v Central Hanover Bank & Trust Co : the constitutional standard for notice is notice that is

reasonably calculated to appraise all interested parties of the pendency of the action. In Mullane, the bank had the names and addresses of interested parties and should have used the best method necessary to provide notice. Dismissed because the defendants were not given adequate notice.

i. Ct said trust co. should have mailed those with known and present interest in trust and whose addresses they possessed; for others, newspaper publication was fine.

ii. Ct stipulated notice to everyone less important here b/c many people with similar (and small) interests.

Federal Rules of Civil Procedure Rule 4 (a) Form: summons shall be signed by the clerk, directed to the defendant and state the name and address of the plaintiff's attorney. Summons must also state the time and date to appear & notify the D that failure to do so will result in a default judgment against the defendant. (b) Issuance: After the summons, found in proper order, is sighed by the clerk, the P is responsible for issuance. Each D listed will receive individual service. (c) Service with complaint, by whom made

(1) the summons will be served with a copy of the complaint. The P is responsible for service on the D.(2) service may be effected by any person who is not a party and is 18 years or older The court may make a court officer issue service if requested by the P

(d) Waiver of service(1) waiver of service does not automatically waive D's objections to venue or jurisdiction(2) the D, if request for waiver is received properly, has a duty to waive service to avoid unnecessary costs For proper service, the notice and request:

(A) shall be in writing and addressed to the D, or a managing officer if D is a corporation(B) shall be dispatched through 1st class mail or other reliable means(C) shall be accompanied with a copy of the complaint and identify the court in which it has been filed(D) shall inform the D of the consequences for failure to reply - ie burden of costs(E) shall give the date on which the letter was sent

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(F) shall allow the D 30 days from the date the request was sent to respond; 60 days if the D is outside any district of the US, and(G) shall provide the D with an extra copy of the notice and request along with a prepaid means of compliance in writing

(e) Service on individuals(1) service may be made pursuant to the laws of the state in which service is effected, or(2) by delivering a copy of the summons and complaint to the individual personally, by delivering a copy of the

summons and complaint to the individual's dwelling house or usual place of abode with some person of suitable age and discretion residing therein, or by delivering a copy of the summons to an agent authorized by the appointment of law to receive process (f) Service on persons in a foreign country

(1) service by an internationally agreed upon means - is the Hague Convention(2) in the absence of an internationally agreed upon means, by any means reasonably calculated to give notice:

(a) such as any manner prescribed by a foreign country(b) by a letter of rogatory (foreign judge examining witness)(c) by any form of mail requiring a return receipt, unless prohibited by foreign law

(h) Service upon corporations and associations(1) service is effected upon any managing or general agent of the company or any other agent authorized to

receive servicece is effective upon any individual subject to the jurisdiction of the US (l) Proof of service

- if service is not waived, P shall make service known to the court- if service is not conducted by a US marshal, P will make service known by affidavit

(m) Time limit for service- if service is not effected within 120 days of filing of the complaint, the case is dismissed

- exceptions are made if the P can give good reason for the failure (n) Seizure of property

(1) the court may assert jurisdiction over a property as provided by stature; the court must also send notice to claimants as provided for in the statute(2) a court may assert jurisdiction over a defendant not found in a state via attaching D's property according to the laws of the state

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1.8 VENUE & SERVICE

1.8.1 VENUEA. Definition: (1) convenient location of litigated case, and (2) has some connection to the forum state or the

parties. a. Purpose: protect D’s against far-flung suits to ensure convenience, efficiency and fairness. b. Every cause of action: Venue is required for every individual COA brought against D. D can make

motions to dismiss for lack of venue for each COA. c. Every joined party: Venue must be satisfied for every joined party. d. Plaintiff’s residence is irrelevant in determining venue.

B. Venue in Federal Courts: Federal courts determine if the case is (1) “diversity” or “federal question” and then (2) apply the appropriate federal venue rules. [28 U.S.C. §1391] (codifies some of the McGee factors)

a. Diversity [28 U.S.C. §1391(a)]: When based on diversity of citizenship, venue is proper in a district where:

i. Any D resides, if ALL D’s reside in the same state, AND CONSIDER1. Both D’s from NY (one from Northern district and the other from the Western district).

The venue can be in either district since all D’s are from the same state.ii. A substantial part of the events or omissions giving rise to the claim occurred. OR

1. Uffner v. La Reunion Francaise: 1st Circuit held that even though coverage dispute is contractual, can sue in Puerto Rico because that’s where the accident happened: Meets substantial events requirement

iii. Fallback Provision: Anywhere a D is subject to personal jurisdiction at the time the action is commenced.

b. Federal Question [28 U.S.C. §1391(b)]: When based on federal question, venue is proper when: i. (same) Any D resides, if all Ds reside in the same state, AND CONSIDER

ii. (same) A substantial part of the events or omissions giving rise to the claim occurred. ORiii. Fallback Provision: Any D may be found, if there is no district in which the action may

otherwise be brought. (i.e. place of incorporation, for companies)

C. RESIDENCE for the purposes of venue. a. Natural persons: residence of a natural person is his domicile.

i. ISSUE: courts are split about whether individuals can reside in mult. jurisdiction for the purpose of venue (e.g. vacation home)

b. Aliens: Don’t have residence and can therefore be sued in any district in the country. [28 U.S.C. §1391(d)]

c. Corporate Ds [28 U.S.C. §1391(c)]: A corporation resides in each judicial district in which it is subject to personal jurisdiction at the time the action is commenced (pg 362)

i. NOTE: if state has more than one judicial district, the corporation is deemed to reside in any district in which its contacts would be sufficient to subject it to personal jurisdiction if that district were a state.

ii. NOTE2: if no such district exists, it resides where it has the most significant contacts (e.g. usually where it is incorporated)

d. Resident for non-corporate entities (i.e., partnerships): treated as corporations

D. PLAINTIFF WAIVESa. Only D may raise issue of improper venue. b. A corporation can waive PJ and still object to venue even though PJ is relevant in determining venue.

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E. TRANSFER and DISMISSALa. Transferring a suit: Two Venue Motions

1. §1404 Change of Venue (Originally filed in the right venue)a. Can be transferred to any case where there is PJ over Db. 1404(a): Allows transfer of a case to a district “where it might have been

brought.”c. Court also weighs convenience to P and public policy concerns, like congestion

of local docketd. Same law applies in transferee court as transferor court

Is venue proper?Yes: start w/ 1404No: Start w/ 1406

2. §1406(a): Cure or Waiver of Defects (Originally filed in the wrong venue)a. Authorizes a federal ct. to dismiss a case filed in the wrong venue orb. transfer it to the proper venuec. Law of the transferring court doesn’t move with the case: the action is as if it

were originally filed in the ‘new’ districtPolicy of transfer: It must be in the interest of justice

-we want the P to be the master of the suit so there must be very substantial reasons to transfer (evidence, witnesses)-we don’t want 1404 to be used for forum shopping

Public Interest is also a factor-Jury duty should not be imposed on people of a community to which the litigation has no relevance

1.9 Burden is on the Defendant to show the action would be better litigated elsewhere

Forum non conveniens

Piper Aircraft v. Reyno – Should the trial court be allowed to issue a forum non conveniens dismissal? A court has the authority to decline jurisdiction if the suit may be brought more appropriately in another forum. Marshall says that you can’t weigh the “change of law” effect on the plaintiff that heavily in deciding whether to grant a forum non conveniens dismissal. He says that it can be an element in the decision, but it’s not the end of the story. Marshall says, therefore, that you can argue for a more convenient forum even when that forum would have law that is less favorable to the plaintiff.

The Gilbert balancing test is the black letter law of forum non conveniens. It weighs “private” and “public” factors.

A. The private factors are: 1. The relative ease of access to proof, 2. the availability of witness subpoenas, 3. the cost of getting witnesses, and 4. the possibility of viewing of the premises if called for.

B. The public factors are: 1. Court congestion,

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2. local interest in having local controversies decided at “home”, 3. the forum’s familiarity with substantive law, and4. unfairness of burdening citizens with jury duty for case unrelated to forum.

C. Compare this to the “five factor” test for “fair play” that comes out of World-Wide.D. Everything can be trumped by a forum non conveniens motion.

1. You can say: I have power, there is proper notice, Due Process is satisfied. However, I’m not going to try this case. Courts have the power to do this. It’s sort of like saying now that we’ve balanced everything, let’s balance again with an even mushier standard.

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1.9.1 SERVICEA. Issuing the summons: copy of summons and complaint must be served on each D in the action. [R-4(a), (b)]B. Who can serve?

a. 18 Years of Age & Not a Party [R-4(c)(2)] “Service may be effected by any person who is not a party and who is at least 18 years of age.”

C. How to serve? a. Individuals - [R-4(e)] Unless otherwise provided by federal law, options are:

i. Laws of the state: pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or

ii. Delivered Copy to individual: delivering copy of service and summons to the individual; iii. Delivered Copy to Dwelling: delivering copy of service and summons to the individual’s

dwelling house with someone of suitable age and discretion.

b. Corporations – i. Deliver to company agent: [R-4(h)(1)] delivering a copy of the summons and of the complaint

to an officer, or general agent; and by mailing copies to the D at its principal office. NOTE: this ensures there is a sense of responsibility to make sure the service gets to the right person who can respond. (e.g. CEO’s secretary acceptable; son, probably not).

c. To Lawyer: [R-5] service upon lawyer is okay.

Venue is a matter of convenience for the litigants

objections to venue generally have to be made early in the proceedings

Venue can not be collaterally attacked (because it’s about convenience anyway)

1.10 A. Venue In State Actions

Forum Non Conveniens: a court may use its discretions to decline to exercise jurisdiction if the action could be more appropriately tried in another jurisdiction

This allows move from one state court to another and from federal court to state court!

1) Rationale/ Considerations:a) Parties convenienceb) State’s interest: don’t want to burden the docket with litigation not connected with the state

i) This only comes up as an additional consideration when there is a more convenient forum for the litigants

2) Factors in Deciding;a) Is the P a resident and taxpayer?b) In which state are the witnesses and evidence?c) Which forum will be familiar with the state law that governs?

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1.11 An unfavorable change of Law is not sufficient reason for denying forum non

3) Piper Aircraft v. Reyno (Reyno (CA) v. Piper (PA—airplane people) + Hartzell (OH—propeller people) in CA state court. Forum non dismissala) Facts: A plane went down in Scotland killing Scottish people. Reyno represents the dead people (CA). The

charter company and pilot is in Scotland and the wreckage in England. CA has a long arm statute that sky is the limit. (probably general DBJ anyway) PJ exists over Piper and Hartzell. D removed to CA fed. court under § 1441. Fed. court is proper because of diversity. D requests a § 1404 transfer to PA fed court. PA was a correct venue to begin with, so CA law can be taken there. Then D tries to move to Scotland with a forum non dismissal because D wants to implead the pilot and charter company, and the witnesses are there etc. and …i) Scottish law applied to one of the D’sii) P opposed forum non motion because Scottish law was much less favorable to her

(1) Didn’t recognize SL and contingency fees, and has limited damagesb) Holding: Supreme Court grants forum non: unfavorable change in law should not even be given

substantial weight in the decisioni) Exception: If the remedy available in the alternative forum is ‘so clearly inadequate, that it is no remedy at

all’, then the change in law should be considered because the alternative forum isn’t really a convenient

B. Venue In Federal Actions

§ 1391 Venue exists1. Diversity case

a. the judicial district where any defendant resides, if all D’s reside in same stateb. district where substantial part of event or property in question exists (CENTER OF GRAVITY RULE)

c. there can be more than one place where substantial events occuredd. if no where else works, venue is the jurisdiction where there is PJ over any defendant.

2. Non Diversity Case same as above, except c) any district where d can be found.3. Corporation venue is wherever there is PJ over it, in any district where it has minimum contacts (but not

anywhere in the state!). If no PJ with any one district, venue is in the district with the most contacts.4. Aliens—venue is anywhere.

1.12 Transfer of Venue § 1404

1) Gulf Oil v. Gilbert (Before 1404 was enacted)a) Burden is on the D “unless the balance is strongly in favor of the defendant, the plaintiff’s choic eof forum

should rarely be dismissed”b) Forum non will rarely be granted if plaintiff is at home and home has an interest in the case.c) Factors to examine for Forum Non dismissal

i) location of witnessesii) location of jurorsiii) enforceability of judgmentiv) docket interestsv) social interests where subject matter is of concern to residentsvi) interests of litigantsvii) forum law

1.13 PLEADINGS

1.13.1 SUMMARY OF PLEADINGS 7(a)A. P’s 1st pleading called a complaint

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B. D’s 1st pleading called an answera. Answers include, admission, denials, affirmative defenses, crossclaims, counterclaims.b. Respond (Pre=Answer Motion to dismiss or Answer)c. Defaultd. Do Nothing (Waivers)

C. Pleadings do not = motionsa. Motion - order the court to render a decisionb. Pleading - the formal allegations by the parties to a law suit of their respective claims and defenses, with

the intended purpose to provide notice of what is to be expected at trial.D. FRCP process of pleading

1. Notice of claim (broad statement)2. Stating the facts (detailed and precise)3. Narrowing issues for litigation4. Assist the court in excluding bogus claims

E. Test: Does the pleading give D sufficient notice to respond and begin discovery?a. FRCP forms: If you use them, your pleading is per se adequate.b. 12(b)(6) Motion to Dismiss Complaint for failure to state a claim upon which relief can be granted.

(Demurrer)i. Judge will analyze “four corners of the complaint”

ii. Apply the law and if it contradicts the complaint then the motion will be granted.c. Motion for Summary Judgment- attach document/ affidavit that disputes allegations of the complaint

i. D can file before having to answerd. Basic Pleading

ii. Abolished Code pleadingiii. Dioguardi v. Durning p.415 (1951) A complaint must state just enough to sufficiently notify the

opposing party of the claims against him so he can begin preparing a defense; abolished requirement that a cause of action be stated

iv. 10(b): form of pleading, requires numbered paragraphs for each set of circumstancese. Certificate of service required for all pleadings.

F. Conely v. Gibsona. Pleading dismissed if there are “no set of facts”b. Notice of pleading

G. Leatherman (Heighten pleading referenced in 9(b))a. If it is not in 9(b) then refer to 8(a) (2)

H. Twomblya. Plausibility

I. Iquabala. If there is a conclusion factor then there is no need to give the presumption of truth/factb. Then ask we reviewing the fact to determine a 12(b)(6) motion as is it plausible on it’s face.

FRCP Rule 7: Pleadings allowed; Form of motions [page 37](a) Pleadings .

1) a complaint2) an answer to the complaint3) reply to a counterclaim 4) answer to a cross-claim5) a third party complaint 6) a third party answer to the complaint 7) No other pleading is allowed, except that the court may order a reply to an answer.

(b) Motions and other papers

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1) Request for a court order must be made by a motionA. Request in writingB. State ground seeking the orderC. State relief sought

2) Form: The rules governing captions and other matters of the forms

FRCP Rule 8: General Rules of Pleading [p 37](a) Claims for relief. A pleading that sets forth a claim for relief shall contain factual allegations of:

(1) A short and plain statement of the grounds of jurisdiction (not necessary in a state court action)(2) A short and plain statement of the claim showing that the pleader is entitled to relief (Bell v. Twombly: more adequate claim)

(a) invocation of a legal theory (state problem)(b) plead the facts fitting into the theory

i. (Conley v. Gibson)(3) a demand for judgment (prayer for relief - ask for what you want from the court)(4) A request for jury trial if desired

- required by most courts- jury trial is waived if not requested

(b) Defenses; Forms and Denials (Answers). A party shall state the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge as to the truth of the averment, they shall state this - ignorance takes the form of a denial. Unless the pleader intends in good faith to deny all the averments (under a general denial), the pleader shall make denials as to specific averments or paragraphs, or deny all averments except designated paragraphs.

(c) Affirmative Defenses: In pleading to a preceding pleading, a party shall set fort any and all matters constituting an avoidance or an affirmative defense. When a party has mistakenly designated a defense as a counterclaim or vice versa, the court may treat the pleading as if there had been a proper designation.

- affirmative defenses admit to the facts, but attempt to prove an alternative legal theory. ex: assumption of risk, duress, estoppel, res judicata, etc.

- affirmative defenses must be file with the answer of they are waived.

(d) Effect of Failure to Deny: Averments in a pleading to which a responsive pleading is required, other than those to the amount of damages, are admitted when not denied in the responsive pleading.

(2): permits pleading in the alternative(3): permits inconsistent claims

(e) Construing Pleadings: pleading must be construded so as to do justice

1.13.2 PLEADING WITH PARTICULARITY (p 434)

FRCP Rule 9:

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(a) Capacity: It is not necessary to aver the capacity of a party to sue or be sued except to the extent required to show the jurisdiction of the court. When a party wished to raise the issue of a party’s capacity to sue or be sued, the party wishing to raise the issue will do so by specific negative averment that shall include such supporting particulars as are peculiarly within the pleader’s knowledge.

(b) Fraud, Mistake, Condition of the Mind (Heightened Pleading): In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, or any condition of the mind of a person may be averred generally.

(c) Conditions Precedent: In pleading the performance of conditions precedent, it is sufficient to generally aver that all conditions precedent have occurred. Any denial of the occurrence of conditions precedent shall be made specifically.

(d) Official Document or Act: In pleading an official document or act, it is sufficient to aver that the document was act performed in compliance with the law.

(e) Judgment: In pleading a judgment formerly rendered, it is sufficient to aver the judgment without setting forth matter showing jurisdiction to render it.

(f) Time and Place: Averments of time and place are to be considered material and shall considered like all other averments of material matter,

(g) Special Damage: Items concerning special damages shall be specifically stated.

FRCP Rule 11: ATTORNEY SANCTIONSSigning of pleadings, motions, and other papers; Representations to the court;

i. Sanctions are discretionaryii. Sanctions are proper when

a. Pleading is no longer has reasonable factual basisb. Pleading relies on legal theory that has no chance of successc. Pleading filed in bad faith or for improper purposes

iii. Test for whether conduct was reasonable under the circumstances

a. Whether the claim is objectively frivolousb. Whether the person signing the pleading should have been aware they were frivolous

(a) Signature: Any paper submitted to the court shall be signed by a party or the party’s attorney. The paper shall state the party’s address and telephone number. Unless stated, pleadings need not be accompanied by affidavit. Unsigned papers shall be stricken unless corrected quickly after being called to the attention of the offending party or attorney.

(b) Representations to the Court: By submitting a paper to the court, a party certifies to the best of his knowledge:

(1) the paper is not being presented for any improper purpose such as to harass or cause unnecessary delay or increase in the cost of litigation.(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument.(3) the allegations contained in the claim have evidentiary support or are likely to have such

support after time has been allowed for discovery.(4) the denials of factual contentions are warranted on the evidence or reasonable based on a

lack of information and belief.

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(c) Sanctions: If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may impost sanctions on the parties in violation of subdivision (b).

(1) How Initiated(a) By Motion. Motions for sanctions shall be made separately from other

motions or requests and shall describe the specific conduct alleged to violate subsection (b). The motion shall not be filed with the court if, within 21 days after service

of the motion, the challenged claim is withdrawn or appropriately corrected. (c) On the court’s initiative. The court may enter an order describing the conduct

that appears to violate subsection (b) and direct a party to show cause as to why it has not violated subsection (b).

(2) Nature of Sanction; Limitations. Sanctions shall be limited to that which will deter repetition by the offending party and others similarly situated from violating subsection (b). The sanction may consist of nonmonetary directives, a penalty paid to the court; or, if imposed on a motion, payment to the movement for some or all expenses incurred as a direct result of the violation.

(a) Monetary awards may not be awarded against a represented party for violations of subdivision (b)(2) - making frivolous claims

(b) Monetary awards may not be awarded on the court’s initiative, unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is to be sanctioned.

FRCP Rule 12: Motions for judgments on the pleadings [p 39]

When analyzing a 12(b) motion, the court will, (1) assume the factual allegations are true, (2) all reasonable inferences in P’s favor, (3) question if the claims are plausible.

(a) When Presented(1) A defendant shall serve an answer

(a) Within 21 days after being served with the summons and complaint, or(b) If the summons has been timely waived, the D has 90 days to submit

an answer(4) D’s answer is due within 14 days after he receives notice of the denial of the Pre-

Answer Motion

(b) How Presented. Every defense to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or 3rd party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the pleader be made by motion:

(1) lack of subject matter jurisdiction (objection may be brought up @ any time)WAIVER TRAP: 12(h) = 2-5 waived if not objected to in initial Answer(2) lack of personal jurisdiction(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

a) bad legal theory or one not recognized in the court’s jurisdictionb) failure to include details - may be fixed easilyc) wrong facts

(7) failure to join a party under Rule 19

(c) Motion for judgment on the pleadings. After the pleadings have closed, any party may move for a judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside of the pleadings are presented

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to and not excluded by the court, the motion shall be treated as one for summary judgment in accordance with all stipulations of Rule 56.

(d) Preliminary Hearings. All defenses mentioned in (b)(1)-(7) and the motion for judgment mentioned in (c) whether made by pleading or motion shall be heard and determined before trial unless the court orders the hearing and determination thereof deferred until the trial.

(e) Motion for a more definite statement (vague & ambiguous statement). If a pleading is submitted that is so vague that the responding party cannot reasonable be expected to frame a response. The party may move for a more definite statement pointing out the defects complained of and the detains desired. If the motion is granted, the court may strike the pleading against which the motion was granted unless there is a response within 10 days.

(f) Motion to strike (irrelevant allegation). Upon motion made by a party before responding to a pleading, or upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court’s own initiative at any time, the court may strike from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. (this “blue pencil” rule is rarely used)

(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party fails to make a permitted motion at this time the motion is waived except for motions provided in (h)(2).

(h) Waiver or Preservation of Certain Defenses. (motions in 2 & 3 are not waived if omitted in the initial reply)(1) A defense for lack of personal jurisdiction, improper service, or improper venue is waived:(a) if omitted from a motion in the circumstance provided for in (g), or(b) if it is neither made by motion under this rule nor included in a pleading permitted under Rule 15.(2) A defense for (1) the failure to state a claim (2) the failure to join an indispensable party under

Rule 19, and (3) an objection of failure to state a legal defense to a claim may be made in any pleading permitted or order under Rule (7)(a), or by motion for judgment on the pleadings, or at the trial on the merits.

(3) An objection to subject matter jurisdiction may be brought up at any time.

FRCP Rule 15: Amendments and Supplemental Pleadings [p 49] (applies to answers and counterclaims as well)(a) Amendments. A party may amend its pleading once at any time before a responsive pleading is served. If the pleading has been served, the party may amend it only by leave of court or by written consent of the adverse party - leave shall be freely given when justice requires. A party shall respond to an amended pleading within the time remaining for response to the original pleading, or within 10 days, whichever may be longer, unless the court otherwise orders.

(b) Amendments to Conform to the Evidence. When issues not raised in the pleadings are tried by express or implied consent of the parties, they shall be treated as if they had been raised in the pleadings. If evidence is objected to at trial on the grounds that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended.

FRCP Rule 55: Default; Default Judgment

(a) Entering a Default.

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.

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(b) Entering a Default Judgment.

(1) By the Clerk.

If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk — on the plaintiff's request, with an affidavit showing the amount due — must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.

(2) By the Court.

In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals — preserving any federal statutory right to a jury trial — when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.

1.14 AMENDMENTS TO PLEADINGS (RULE 15)

1. Rule 15a – Amending in generala. Can amend “once as a matter of course” (i.e. w/o need of permission)

i. Before responsive pleading is served, OR

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ii. If pleading where no response pleading permitted (i.e. answer that doesn’t include a claim), at any time w/in 21 days if not placed on trial calender.

b. If miss “matter of course” deadline, can amend either i. With adverse party’s written consent OR by “leave of court” – given freely when “justice

so requires”1. See Beeck v. Aquaslide, allowing D to rescind admission one year after filing

answer.2. Rule 15b amendment to conform to the evidence

a. Issue arises when trial evidence doesn’t match what is pleaded.b. If issues are presented w/out objection, they become part of case by “implied consent” (see

Hardin v. Manitowoc, P “partially” losing for this reason)i. And remember Rule 54c allows all Ps to get relief on all issues at trial, even those not in

pleadings (except for default)c. If party does properly object, court can grant leave to amend unless amendment will prejudice

non-amending partyi. Prejudice Is the party less able to respond to the issue now than it would have been at

the start of trial? (and how much so?)

Amendments to Pleadings-Rule 15

-Rule 15(a) addresses 2 types of AMENDMENTS:1. Those filed as a matter of course2. Those allowed by leave of court (or consent of the adverse party)

-Amendments as a MATTER OF COURSEP can amend ONCE without leave of court before she receives the answer to her complaint

-Rules require D to serve and answer to the complaint within twenty daysDefending party has a 20-DAY WINDOW after serving the answer to file an amended answer, w/out

seeking permission from the court or the adverse party-Amendments With Leave of Court

-Rule 15(a)—Leave to amend shall be freely given when justice so requires-Parties should not be barred from proving a claim or defense simply because they had not pleaded it on

the 1st day of the lawsuit—If counsel develops a new legal theory or becomes aware of new facts that might support recovery, they should be able to restate the positions in their pleadings, so that the trial can be based on this fuller understanding of their casesIf an amendment is sought later in the process, the argument for denial becomes considerably strongerCourts will also DENY amendments that assert legally insufficient claims, EX: where added claim fails to state a claim upon which relief could be granted, or would be barred by the SOLAmendments may also be DENIED where there is clear prejudice to the opposing party due to:

-Delay or loss of evidence-Where judge has reason to conclude that the party seeking to change the pleading has acted in bad

faith—EX: waiting to add the claim until it will be difficult for the opposing party to hire an expert or prepare to try the issueJudge will consider whether the party has already had opportunities to amend and failed to add an available claim or defense in an earlier amendment

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An amendment of a PLEADING (not just of a complaint) relates back to the original pleading if it asserts a claim arising from the same conduct, transaction or occurrence

-Rule 15(b)—In order to treat an issue as though it had been pleaded, the court must find that the issue was really tried by “implied or express consent” of the parties

KEY is that the course of the litigation clearly put all parties on notice that the issue was asserted as a basis for recovery or defense-Rule 15(a)—expressly authorizes amendments by consent of the other party

1.15 RES JUDICATA (A matter already judged)

1.15.1 GENERALLYA. Summary: a final judgment in a civil action bars any subsequent relitigation of the matters adjudicated. It precludes

renewed litigation thereof in any subsequent action or proceeding. While sometimes it means only claim preclusion, for our purposes we will use it to mean both issue and claim preclusion.

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a. Purpose: i. Pros

1. 1) avoid time and expense in multiple litigations of the same matter. 2. 2) protect against substantial evil of inconsistent results.

ii. Cons: 1. costs of adjudicating claim preclusion; 2. harsh rulings when an earlier mistake was made;

B. Prerequisitesa. Before a judgment will be accorded res judicata effect, it must be shown to be:

i. 1) a Final Judgment1. Meaning: represents the completion of all steps in the adjudication of the claim by the court. In

federal practice, a judgment once entered is deemed to be final even though an appeal is pending. It remains final and valid until reversed or modified by appellate court.

a. Note: as a practical matter, enforcing res judicata on issues still pending appeal are usually continued until appeal is determined.

2. Conflicting judgments: where there are two conflicting judgments, the last in time controls.

ii. 2) On the Merits1. A judgment is on the merits where the substance of the claim has been tried and determined. Even

if a judgment is not on the merits, whatever has been fully litigated and decided may be entitled to issue preclusion.

a. Not on the merits: i. Lack of Federal Jurisdiction - [R-12(b)(1)]

ii. Improper Venue - [R-12(b)(3)] iii. Necessary party not joined - [R-12(b)(7)] iv. Dismissal on failure of service (can bring again anywhere)v. statute of limitations (Williamson v. Columbia Gas & Electric Corp.)

b. On the merits: i. Failure to state a claim - [R-12(b)(6)] – must allege all the elements of the

cause of action to avoid dismissal. ii. Default judgments: these are on the merits and are entitled to Claim preclusion.

There is a split about whether such judgments have issue preclusion. 1. Argument against this rule : P doesn’t have any opportunity for

discovery or to add other claims. What if he would have found more COAs, more damage, etc. Note: D doesn’t lose his compulsory counterclaims if you default. You can bring them later.

2. Collateral attack – a default judgment may always be attacked either in the state where rendered, or in any other state or forum, on the basis of lack of jurisdiction. Such an attack is a collateral attack rather than an appeal.

iii. Failure to state a claim : Rinehart v. Locke – claim preclusion is applied

c. [R-41b] – dismissals are on the merits except for jurisdiction, venue and necessary parties.

iii. 3) Valid Judgment: rendered by a court with valid jurisdictioniv. 4) Same parties or privity of parties:

C. CLAIM PRECLUSIONa. Introduction: A final judgment on the merits by a court with valid jurisdiction can have the following effects:

i. Merger: Ps COA is merged into judgment he obtains. The only action P can bring is one to enforce that judgment. D is precluded from relitigating the merits of his defense.

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ii. Bar: P is barred from suing D on the same claim or COA, including all demands that are part of the same transaction or occurrence (T&O).

1. CASE: O’Brien v. City of Syracuse – bars all claims arising out of the same transaction, even if based on different theories or seeking different remedies, once a claim is brought to a final conclusion.

2. CASE: Rinehart v. Locke – P sued D for alleged false arrest. Dismissed for failure to state a claim. Dismissal for failure to state a claim is on the merits and has claim preclusive effect.

a. [R-41(b)] says all dismissals are on the merits except those listed.

b. Effect of Merger or Bari. Transaction or Occurrence: today, most courts use the transaction or occurrence (T&O) approach to

determine the scope of the claim. 1. Reasoning: if P has a single COA against D, he cannot split it and obtain successive judgments

for part of the wront. The first judgment extinguishes the entire claim or COA so that there is nothing left to sue.

2. CASE: Sutcliffe Storage & Warehouse Co. v. United States – a. FACTS: D rented storage space from P. P alleged that D used additional space and sued

to recover fair value. P, trying to avoid filing in WA, brought four actions against D saying there were separate violations of the leasing agreement for different time periods.

b. RULE: P had to consolidate claims. Main purpose is to keep courts from having to relitigate the same issues in more than one suit.

c. Benefits vs. Costsi. Benefits: Efficiency. Now that you have an expensive discovery process, the efficiency gains of putting all

these together makes sense.ii. Costs: Unjust, in some cases. COA you lost might have been crummy but now you are precluded from

bringing good ones. Over litigation – this is your one bite at the apple so you bring everything up, even things you don’t really care about.

d. Compulsory Counterclaim Statutes: D is required to set up any claim he has against P arising out of same T&O. If he fails to do so, he is barred from asserting it later, either as a defense or as a basis for affirmative relief.

e. Quasi in rem: Claim preclusion never applies to quasi in rem actions because the jurisdiction is based solely on the assets before the court (no PJ), so their jurisdiction is therefore limited to these assets.

D. ISSUE PRECLUSION

a. Requirements: Issues actually litigated b/w the parties are binding on them in subsequent actions covering the same COA. Must involve mixed questions of law and fact or just issues of fact.

i. Collateral estoppel: even where 2nd lawsuit involves a different COA, the first judgment may be invoked as an estoppel as to all matters actually litigated in the first action that were essential to its determination and identical to the issue presented in the 2nd lawsuit.

1. CASE: Little v. Blue Goose Motor Coach (issue preclusion for COA from same T&O)a. FACTS: accident occurred involving bus and vehicle driven by Little. Ct ruled for Blue

Goose. Little then died and executor sued for wrongful death. b. RULE: does judgment of previous justice court constitute an estoppel by verdict for

subsequent actions having same T&O? Yes.

2. CASE: United States v. Moser (Unmixed questions of law – wrongly decided)a. FACTS: P and Jasper were cadets. P retired and brought action against US to recover

additional pay. Judgment was for P but P had to relitigate future installments. Evidence was later brought showing cadets should be denied the additional pay.

b. RULE: You can’t relitigate the question of fact, even if it was based on an erroneous application of law.

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ii. “Actually Litigated” – effect of prior judgment for issue preclusion is limited to issues that were actually litigated in the former action.

1. CASE: Jacobson v. Millera. FACTS: P sued D for installment of rent due under written lease. D denied executing the

lease. Found for P. b. ISSUE: must party bring forth all defenses to prevent having them lost in subsequent

litigation b/w the same parties that may involve the same questions but relates to different subject matter? NO.

iii. “Essential Facts”: issue preclusion applies only to those matters decided in the earlier lawsuit that were essential to the court’s determination. Essential to the COA or defense established.

1. Test: Facts are essential if it appears that, as a matter of law, the right to recover depends on these facts. Any other facts are merely evidentiary.

2. Burden of proof: is on the party pushing for Issue Preclusion to prove that the matter was actually litigated in the former suit and was essential to the court’s decision.

3. CASE: Cambria v. Jeffrey – (non-essential issues are not precluded from future litigation)a. FACTS: D (car owner) brought negligence action on P (another car driver) for personal

injuries. Judge found both parties negligent and therefore entered summary judgment for P.

b. ISSUE: does adjudication of a particular fact in the case occur only when such fact serves as the basis of relief? YES.

c. RULE: trial court found D was contributorily negligent and therefore could not recover against P. Therefore, finding that P was negligent did not affect the judgment. Therefore, trial court did not adjudicate whether P was negligent b/c it was not an essential fact for relief.

iv. Identical Issue: it must appear that the issue decided in the prior adjudication was identical to the one presented in the instant action. A mere similarity of issues is not enough.

1. CASE: Berlitz Schools v. Everest House – (minor difference in fact – issue preclusion allowed)a. FACTS: D publisher published a bunch of books. P sued based on trademark dilution.

Only difference was that disclaimer’s print was slightly smaller than in the 1st action. b. RULE: Issue Preclusion bars further suits on similar facts if there are no great differences

in facts.

b. Other issuesi. Default Judgments: courts are split about whether default judgments give rise to collateral estoppel.

Traditional view is that it does. Conclusive as to all issues necessarily involved in the former suit despite no actual litigation. Other courts hold that “actually litigated” requires evidence be presented to trier of fact. This is believed to be the better view.

ii. Issue Preclusion vs. Stare Decisis1. Issue preclusion does not apply to pure questions of law because that would mean it would

apply to abstract principle’s of law divorced from specific facts. This is bad because new laws could come out in conflict with the question of law and you would still be bound by it. Issue preclusion, in some ways, is stronger than stare decisis because issue preclusion cannot be overruled. The reason it is not a problem is that it only applies to particular parties.

a. v. US: nonmutual offensive issue preclusion cannot be applied to the US because this would interfere with the proper development of the law by not allowing various circuits to deal with a problem before Supreme Ct grants certiorari.

iii. Change in Law: this can void issue preclusion. E.g. US brings antitrust suit and loses. Antitrust law changes. They can probably bring a new suit.

iv. Intervention: Just because you had capacity to intervene and failed to do so does not mean you are issue precluded. However, there has been some movement in this area b/c if they are necessary parties, we want them to join.

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v. Impleader: If you implead I b/c they have a duty to indemnify you, they are issue precluded.

vi. When it Applies1. Same old facts, but new law: not clear if it applies. 2. New facts, old law: not clear if it applies. 3. Same facts, same law: it applies. 4. New facts, new law: it does not apply.

E. EFFECTS ON 3rd PARTIESa. Persons Bound by Prior Judgments: Normally, res judicata applies only where all parties to the later action are

parties in privity with parties to the former action. i. Party identity: substantial identity of the parties is all that is required. It is sufficient if the parties in the

present action were on opposite sides in the former case. The fact that there were others joined as co-Ds or co-Ps is immaterial.

1. Note: the rule is not so clear where parties were on the same side in the prior suit. It apparently turned on whether D1 and D2 were in adversarial positions in Ps action and actually litigated therein the issue of their liability between each other.

2. LANDMARK CASE: Bernhard v. Bank of America (Mutuality requirement abandoned) – facts below

a. RULE: requirement of mutuality is abandoned. Mutuality of estoppel, that required both parties to the second action to have been parties to the first action in order to assert issue or claim preclusion is hereby expressly overruled. See also Blonder-Tongue Labs v. University of Illinois

ii. Privity: Privity exists if it is fair and reasonable that the present party be bound by the prior judgment. 1. Overlap of interests: think of privity in terms of overlap in interests. Husbands and wives are not

in privity together but parents acting as guardians are in privity with their children. Privity only exists when you are legally obligated to pursue litigation in the way that will be in the best interests of the other person.

a. CASE: Show-World Center v. Walsh – (no landlord-tenant privity) D sets up smelly farm next to apartment building. landlord sues and loses. Is tenant in privity w/ landlord? No, they have different interests and may pursue different litigation strategies.

b. CASE: Neenan v. Woodside Astoria (No Iss. Prec. if P2 had no privity) P1 sues D for negligence and wins. P2 sues D and P1 for negligence and wins. P1 wants P2 to be issue precluded from finding him negligent since he was found not negligent in 1st action. Doesn’t work b/c P2 was not in privity to the 1st action.

2. Argument for not being bound: You might have a different set of interests in your individual capacity than you would have as guardian.

b. Persons Entitled to Benefits of Prior Judgments: traditionally, the party asserting the judgment had to be one that would have been bound had the judgment gone the other way. Therefore, if you were not a party nor had privity to the former action, you could not assert or rely on the judgment in a later proceeding.

i. Exception: Vicarious liability1. When two D’s have relationship such that one is responsible for the conduct of the other, a

judgment exonerating either D precludes the action on the same claim against the other. This was always an exception, even when mutuality was required.

2. LANDMARK CASE: Bernhard v. Bank of America (mutuality of estoppel is abandoned)a. FACTS: Mrs. Sather gave Cook some money to deposit in her bank. Cook embezzled. P

sued Cook for embezzlement. Ct. found for Cook saying it was a gift. P sued Bank,

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asserting bank had illegally allowed Cook to make withdrawals. Bank asserted Issue Preclusion.

b. RULE: requirement of mutuality is abandoned. Mutuality of estoppel, that required both parties to the second action to have been parties to the first action in order to assert issue or claim preclusion is hereby expressly overruled.

c. RULE: when preclusion benefits new party, it is allowed. When it would hurt new party, it is not allowed b/c of privity.

c. Offensive v. Defensive Use: it used to be that issue preclusion could only be used defensively, not offensively against a D to block him from relitigating issues he had previously lost. This was changed in Parklane Hosier y .

i. Defensive non-mutual issue preclusion: (person precluded in 2nd action is the PLAINTIFF). D is trying to use issue preclusion as a shield to prevent P from using that issue against them. This encourages joinder

1. CASE (defensive use of issue preclusion) Blonder-Tongue Labs v. University of Illinoisa. FACTS: P brought action against D for patent infringement. D claimed P was

collaterally estopped b/c Ps patent was declared invalid. b. RULE: Mutuality of estoppel is abandoned when using Issue Preclusion defensively. c. ANALYSIS: It is no longer tenable to afford a litigant more than one full and fair

opportunity for judicial resolution of the same issue. Mutuality of estoppel is overruled in cases of defensive use of the doctrine.

ii. Offensive non-mutual issue preclusion: (person precluded in 2nd action is the DEFENDANT) P is using issue preclusion as a sword to prevent D from arguing. Should not be allowed if P could have joined earlier case. This discourages joinder. One P will try, but if they fail, another P can try.

1. CASE (offensive use of issue preclusion allowed) Parklane Hosiery v. Shorea. FACTS: Shareholder’s class action against D. SEC won declaratory judgment in 1st

action against D. P moved for partial summary judgment against D on issues litigated in SEC action. District court denied motion and court of appeals reverses.

b. RULE: A nonparty can use a prior judgment offensively. NOTE: this should not be allowed if P could have joined the earlier case, in fairness to D.

c. CONSIDERATIONS FOR WHETHER TO ALLOWi. (1) Could P have easily joined suit?

ii. (2) Did new P "wait and see?"iii. (3) Were damages minimal in other suit so D didn't vigorously litigate?iv. (4) Did D in earlier suit foresee further litigation so defend vigorously?v. (5) Are there inconsistent judgments indicating "wait and see?"

vi. (6) Are there additional procedural opportunities unavailable below? If evidentiary standards were easier below, then reason NOT to apply issue preclusion.

iii. Exception: nonmutual offensive collateral estoppel cannot be applied to the US because this would interfere with the proper development of the law by not allowing various circuits to deal with a problem before Supreme Ct grants certiorari.

1.16 JOINDER

1.16.1 JOINDERA. Joinder of Claims

a. Summary: determining which parties should be joined can get complicated. Compulsory joinder rules cover those parties that absolutely must be joined (indispensable) and those who should be joined if possible (conditionally necessary parties). Permissive joinder deals with rules about parties that may be joined if P chooses.

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b. Purpose: To have an efficient set of rules to decrease transaction costs, so the same outcome results by the same jury for same transaction or occurrence. Reduce inconsistencies when you are pleading the same evidence/facts. (common facts, reduce discovery costs, etc.)

c. Federal Rule: A party with a claim (original claim, counterclaim, cross-claim, or third-party claim) may assert as many claims as she has against any opposing party. [R-18(a)]

i. [R-18(a)] is the broadest joinder rule. Requires that you establish parties as adversaries through proper joinder before it applies.

ii. P can aggregate all claims he has against D to meet jurisdictional minimum.

d. Permissive: however, while there is no compulsory joinder of claims, P’s usually join related claims for fear of Issue and Claim preclusion.

e. Two Step Analysisi. Is Joinder permitted?

ii. Do you have Personal Jurisdiction and SMJ and venue with the addition of the new party?

B. Joinder of Partiesa. Federal Rule: There is both compulsory and permissive joinder.

b. Compulsory Joinder: [R-19(a)]covers both parties who must absolutely be joined ( indispensable parties ) and those who should be joined if possible ( necessary parties ) . Rule: [R-19(a)] – court will require joinder of any person who has a material interest in the case, and whose absence would result in substantial prejudice, either to that person or other parties already before the court.

i. Necessary Parties: [R-19(a)] They must be joined, if feasible, if: 1. In her absence, complete relief cannot be accorded among those already parties. 2. Her interest is such that to proceed w/o her would substantially prejudice b/c it would:

a. Impair her ability to protect her interestb. Expose the parties already before the court to the risk of double liability.

ii. Indispensable parties [R-19(b)]: those whose interests are so directly and unavoidably involved that unless they can be brought before the court, it will lack subject matter jurisdiction.

1. Effect of Non-Joinder [R-19(b)]: If such a person cannot be made a party (e.g. not subject to court’s jurisdiction), the court must determine if the party is conditionally necessary (“in equity and in good conscience” the action can proceed w/o her) or indispensable (case must be dismissed).

a. Factors [R-19(b)]: The court looks at the following factors when determining: i. Extent to which judgment would be prejudicial to her interest

ii. Extent to which such prejudice could be lessened or avoided. iii. Whether P will have any other adequate remedy if action is dismissed for

nonjoinder.

2. CASE: Haas v. Jefferson National Bank – Glueck was an indispensable party. Case dismissed because joining him would destroy diversity and SMJ.

3. CASE: Shields v. Barrow: (P suing 2 of 6 landowners, other 4 indispensable) – otherwise, P could be held owner w/respect to some and not others.

iii. Regarding Venue: if necessary party rejects to venue and venue would be improper, they must be dismissed from the action.

iv. Regarding PJ: if there is no PJ over a necessary party, they must be dismissed from the action.

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v. Effect on diversity jurisdiction: if the party is necessary, joinder will not be ordered if it would destroy diversity. If the party is indispensable, joinder will be ordered, diversity will be destroyed and the action will be dismissed. Haas v. Jefferson National Bank (Glueck was indispensable but destroyed diversity – case dismissed)

vi. Waiver: if absentee is not indispensable, nonjoinder must be raised at earliest possible time. Otherwise it is waived. [R-12(g)] If they are indispensable, there is no such waiver and it can be raised at any time. [R-12(h)(2)]

vii. ERIE: Classification of parties for joinder purposes is a question of procedure for Erie Doctrine purposes, and hence is made by federal courts w/o regard for state law.

c. Permissive Joinder of Parties: [R-20(a)]; [R-13(h)] in addition to situations in which ppl should or must be joined, there is also the question of which persons may be joined, if P chooses.

i. Modern Approach: Extremely liberal. [R-20(a)] Basically, all persons may join in one action as P’s or be joined therein as D’s if:

1. Same transaction and occurrence. (very broadly interpreted) – enough to show factual relationship b/w claims.

2. At least one common question of law or fact (rarely means anything more than just T&O)

ii. Waiver of Joinder: If you want to attack improper joinder under Rule 20 or Rule 19, the defect must be raised at the outset of the case by appropriate motion. Failure to raise it waives the defect. (unless party is indispensable).

d. [R-13(h)] Joinder of Parties: parties may be made parties to counterclaims and cross claims in accordance w/Rules 19 & 20

i. ISSUE: why doesn’t this allow for 14(a) impleader?

C. Special Joinder Devicesa. Interpleader: [R-22]party, against whom there are several mutually exclusive claims wrt the same debt or property

can join all the claimants in the same action and require litigation among themselves to determine which is valid. (e.g. take it to the court and step out of the way).

b. Impleader: [R-14(a)] D is permitted to bring a stranger into suit if he may be liable for all or part of P’s claim against him. Purpose is to protect D from inconsistent verdicts. Requires contribution or indemnification.

a. Claims for or against Impleader: i. I sues P: [R-14(a) 6 th sentence ] 3rd party D may assert any claim against the P arising out of the

T&O that is the subject matter of Ps claim against original D. ii. P sues I: [R-14(a) 7 th sentence ] P may assert any claim against the 3rd party D arising out of the

T&O that is the subject matter of P’s claim against original D. b. Killing Diversity: D cannot kill diversity by impleading a party that is not diverse w/ P.

c. Intervention: [R-24] nonparty may interpose herself into lawsuit to protect her interest from being adversely affected. To intervene, a party must have an interest they will not be able to vindicate unless they are involved in the suit.

a. Two Typesi. Intervention of right : intervention is granted as a matter of right where federal statute confers

the unconditional right to intervene, OR the pending action would impair or impede applicant’s interest in the subject matter. [R-24(a)]

ii. Permissive intervention: [R-24(b)] court has discretion to permit intervention if there is a common question of law or fact.

b. Effect of Intervention: (supplemental jurisdiction) - [28 U.S.C. § 1367] gives federal courts jurisdiction over claims by interventing parties.

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i. Exception for Diversity: when based solely on diversity, court does not have jurisdiction over P’s claim against person intervening under Rule 24 (intervention), or over a claim by a party seeking to intervene under R-24 as a P, when this would kill diversity.

D. Cross Claim s [R-13(g)]a. Definition: [R-13(g)] D may set forth in answer claims he has against co-D that relate to same transaction or

occurrence (T&O). Cross claims are NOT COMPULSORY. However, once parties become adversaries, counterclaims apply for related or unrelated actions per R-13(a) and R-13(b).

b. Jurisdiction: Since the cross-claim must be closely related to existing action, it is always deemed within ancillary (supplemental) jurisdiction of the court. No independent ground for federal question is required.

E. Class Actions [R-23(a) – necessary factors , (b) - types]a. Definition: one or more members of a class can sue on behalf of all members of the class. These are permitted

where considerations of necessity and convenience justify maintenance of the action on behalf of the group, rather than in multiple actions by members individually.

b. Purpose: i. 1. avoid multiplicity of litigation; and associated wastefulness, effort and expense.

ii. 2. provide forum for small claimants unable to afford separate litigationiii. 3. obtain judgments parties can rely on as binding all members of the class.

c. STEP 1: Prerequisites to Class actions: [R-23(a)]i. Numerosity: class must be so numerous that joinder of all members is impractical. No fixed number is

required to make the class “too numerous.” There is also no fixed maximum. However, 1. Limitation: class must be definitely ascertainable2. Limitation: class must be manageable3. Limitation: class must receive adequate notice of the action. Gets more expensive the larger the

class.

ii. Representative is typical: person representing class is typical of the class generally. iii. Adequacy of representation: persons representing class will fairly protect interests of all members of the

class. Interest of representative must be similar to that of all members of the class.

d. STEP 2: Three types of Class actions allowed [R-23(b)]i. Prejudice from separate actions: when separate actions would create a risk of either

1. Inconsistency: Incompatibility for party opposing the class through inconsistent adjudications with all the members of the class. [R-23(b)(1)(A)]

2. Practical: Impairing interests of other members of the class as a practical matter. [R-23(b)(1)(B)]

ii. Injunction: when injunctive relief would benefit the class as a whole. [R-23(b)(2)] note: there is no notice requirement to the rest of the P class for actions requesting injunctive relief.

iii. Predominant question [R-23(b)(3)] question of law or fact common to class predominates over questions affecting only individual members. Requires notice and option to opt out. Common question of law or fact [R-23(b)(3)] requires that the common question predominate over individual questions.

1. Factors to consider: a. 1. interest of individual members in personally controlling their cases.b. 2. nature of litigation already in progress (e.g. already many individual cases)c. 3. desirability of concentrating claims in a single action. d. 4. difficulties expected in managing the class action.

e. Claim preclusive effect of class actions: Binds all members of the class that have not affirmatively requested to opt-out.

f. Jurisdictional Requirements

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i. Diversity: only the residence of the representative is considered. This is in the scope of Congressional power because the Constitution only requires minimal diversity.

ii. Amount in Controversy: all members of class must have claims in excess of $75,000.

F. CASESa. CASE: Zahn v. International Paper (all members of class must meet jurisdictional minimum)

i. NOTE: not clear if this is still the case after § 1367 on supplemental jurisdiction. Some courts allow the other claims on supp. jurs.

b. CASE: Grunin v. International House of Pancakesi. FACTS: D (ihop) was being sued by class on basis that their franchise agreements violated the Sherman

Act. District court approved the settlement stating it was “fair reasonable and adequate as to said class and subclass plaintiffs. P appealed on grounds that notice to class and subclass was inadequate per Rule 23 and that district court abused its discretion in approving the settlement as fair.

ii. RULE: Individualized notice by mail to last known address is “best notice practicable” in a class action context. Also, court in class actions sometimes has to serve as guardian of the rights of the absent class members. This is rare in US judicial system because the otherwise neutral judge must become an advocate.

1.17 ERIE DOCTRINE: CHOICE OF LAWS

1.17.1 ERIE DOCTRINEA. Summary of problem

a. Assuming there is concurrent jurisdiction so that an action might be brought in state or federal court, P’s choice of forum may be influenced by whether he expects one court to apply more favorable rules of law than the other to the issues in the case.

b. State Court: action filed in state court, the P would expect the court to apply its own rules of law, at least where all of the “contacts” with the parties and subject matter are involved. Where there are contacts with other states, whether the local state will apply its own rules or the rules of the other state will depend on its choice-of-law rules.

c. Federal Court: action filed in federal court, there is an additional consideration. Will the federal court apply the rule of law of the state in which it is located or will it apply some separate “federal” law?

B. What is ERIE: more of a system for reasoning through the complex issues raised by the choice-of-law problem. Typically deals with how to determine whether something is substantive law

a. Use State Law Under Erie for: i. (1) State statute of limitations - York

ii. (2) State's choice of law rule (only for choices between states law) - Klaxton

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iii. (3) State's tolling rules – Ragan; reaffirmed in Walker (post-Hanna) where R-3 found not to be in conflict w/ state tolling rules.

iv. (4) State's claim preclusion - Semtekv. (5) State's discovery privilege laws

1. And other procedure that meets following tests, cases below's results are good law, decided on York, but still good under Hanna's re-characterization.

2. When federal action borrow state SoL, take state's tolling rules too

C. §1331 Casesa. Supremacy Clause: If the action involves any claim or defense arising under the US Constitution, statutes or

treaties, there is no choice of law. Federal law alone will govern. (§1331 cases)

D. §1332 Cases and § 1367 casesa. Diversity of Citizenship: Can plaintiff expect the federal court to apply different rule of law in federal court in

diversity cases? i. Originally: Swift v. Tyson said that any matters not specifically regulated by local statutes, federal courts

were free to adopt “general principals of federal common law. This led to horizontal uniformity across the federal court system.

ii. CASE: Erie Railroad v. Tompkins1. FACTS: P was hit while walking along railroad tracks. Under state law, P would be a trespasser

and would be denied recovery. Under federal law, he could recover if D was negligent. 2. ISSUE: May federal court refuse to apply state case law in deciding a substantive issue of liability

in a diversity case that does not otherwise present a federal question? NO. Must apply state law. 3. RULE: Overruled Swift v. Tyson. Federal “general law” became too far-reaching and extended

into matters that should have been left to the states. 4. RULE: court said there “is no general substantive common law”. While federal courts are free

to apply their own rules of procedure, any issue of substantive law (except §1331) must be determined according to the laws of the state in which the federal court is located.

iii. EFFECT: 1. Transcendental Body of Law: Court in Erie denied the idea that there was a body of natural law

that could be discovered. It said law is “made” not merely “discovered.”2. Difficulty in Application: The difficulty in application is due to the difficulty in determining

whether a particular matter or issue is substantive (and governed by state law) or merely procedural (so that federal court can apply its own rules).

3. DUAL PURPOSE: a. 1. Discourage forum shoppingb. 2. Avoid inequitable administration of the law (discrimination in favor of non-state

citizen plaintiffs)

iv. CASE: Klaxon Co. v. Stentor Electric Manufacturing Co. (state choice-of-law rules are used in diversity cases)

1. FACTS: P sued in DE federal court to enforce K executed in NY. Supreme Court said ERIE extended to conflict-of-law rules. A federal district court sitting in DE must apply the conflict-of-law rules prevailing in DE state courts.

b. The “Outcome Determinitive” Test: for many years, Ct. applied test that whatever might have a material effect on the outcome of the case was substantive, and hence subject to state law.

i. CASE: Guaranty Trust Co. v. York (state SOL law applies in diversity actions)1. FACTS: P, representative of class action, sued D in federal court for breaching its trust to enforce

rights of class members. Action was barred by state statute of limitations but not by federal SOL. 2. RULE: State SOL law applies to bar a federal court from hearing the case. 3. TEST: Would the application of federal law significantly affect the result of litigation for the

federal court to disregard the law of the State that would be controlling.

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ii. ISSUE w/ this Case: It soon became clear that there were many matters that would be controlled by Federal Rules of Civil Procedure that were “outcome determinative.”

c. The “Balancing Test”: The vitality of federal rules was renewed when Supreme Court showed a willingness to look beyond the face of conflicting federal and state rules and prescribed a balancing of the interests underlying the rules. This rule has proved difficult for courts to apply.

i. Considerations of the Balancing Test1. Will this lead to vertical forum shopping? Hanna v. Plumer (diff. in service won't) 2. Are there strong reasons for uniformity in federal procedure? (e.g. T&O test for claim preclusion -

you don't want a disjointed affect between the compulsory counterclaim and the claim preclusion law).

3. Decide whether the state wants it to apply in federal court. If they don't care, it wouldn't be bad to have federal law apply. Szantay case (state had "door closing" statute, purpose to clear state docket, state doesn't care if applied in federal court. There were countervailing federal considerations)

ii. CASE: Byrd v. Blue Ridge Rural Electric Cooperative (the Balancing Test limiting York) 1. FACTS: P injured in fall from telephone pole sued D for injuries. State rule said whether P was

employee was to be decided by a judge. Federal rule said decided by a jury. 2. RULE: State rule does not have to be applied3. RATIONALE: While outcome may have been substantially affected by having a judge vs. jury

trial, it is not certain that the factual determination of the case would have been decided differently. Additionally, the state rule here was based on a state supreme court case that was weak and poorly articulated.

iii. CASE: Hanna v. Plumer (when state and federal law conflict, federal rules prevail)1. FACTS: P was injured in car accident and sues D. Service was proper under federal law but not

under state law. 2. RULE: service of process in diversity can be made using Federal Rules of Civil Procedure, even

when it is contrary to state law. 3. RATIONALE: adhering to state rule would not have barred recovery. Only would have altered

way process was served. NOTE: holding from Guaranty Trust (that a claim barred by state SOL may not be brought in federal court) is still valid.

d. Federal Determination of State Lawi. CASE: Bernhardt v. Polygraphic Co. of America

1. RULE: Assuming federal court determines the issue involved is “substantive”, the court will look to all applicable statutes and to the opinions of the highest state courts which have dealt with the issue involved. Federal court cannot refuse to exercise jurisdiction merely because the state law is uncertain.

2. If no state law exists: Federal court must attempt to predict what position the state court would take in such a case.

1.18 APPENDIX

1.18.1 APPENDIX AA. Joinder, etc.

Action PJ V SMJoinder of claims against same D under 18(a) Need independent PJ for

each claimMust be V for each claim

Must independently satisfy SM

Joinder of Ds under 20(a) permissive joinder Need PJ for each party Must be V for each D No for D’s, probably No for P’s

Compulsory Counter C under 13(a) against CC D cannot complain CC D cannot challenge Covered by supp.

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existing parties on VPermissive Counter C under 13(b) against already existing parties

CC D cannot challenge PJ

CC D cannot challenge on V

Must independently satisfy SM

Cross C. against already existing parties CC D cannot challenge PJ

CC D cannot challenge on V

Covered by supp.

Impleaders Impleaded party can challenge PJ

Impleaded party cannot challenge V

Covered by supp.

6th and 7th sentences of R. 14 Cannot challenge PJ Cannot challenge VCross claims or compulsory CCs that add new parties under R. 13(h)

Can challenge PJ Cannot challenge V Covered by supp.

Permissive Counter Cs that join new parties under R. 13(h)

Can challenge PJ Can challenge V Must independently satisfy SM

Claims joined under r. 18(a) to cross-claims, impleaders or 6th and 7th sentence

Can challenge Can challenge

1.18.2 SUPPLEMENTAL JURISDICTIONA. Summary: Supplemental jurisdiction gives the federal court jurisdiction over claims related to those within the

court’s original jurisdiction such that they form part of the same case or controversy. [28 U.S.C. §1367(a)] This section tried to codify pendent and ancillary jurisdiction.

a. Questions: i. 1. Did action arise from common nucleus of operative fact?

ii. 2. Is the original case a §1331 federal question action? If so, then supplemental applies. iii. 2a. If § 1332, check additional limitation for joinder to determine if supplemental juris. applies.iv. 3. A district court may still decline supplemental jurisdiction because it is complicated, is a state

action, or court has dismissed all claims giving rise to SMJ. [28 U.S.C. §1367(c)]

B. Federal Question Actions §1331a. If § 1331 action, then all that is needed is case or controversy and common nucleus of operative fact.

C. Diversity Actions: §1332a. Additional requirement limiting supplemental jurisdiction in joinder

i. Summary1. D can bring actions against anyone2. Impleaded parties can sue P but P can’t sue impleaded parties.

ii.iii. Exclusions: [28 U.S.C. §1367(b)] In any civil action of which the district courts have original

jurisdiction founded solely on § 1332 of this title; 1. Claims by P against persons made party through joinder (R-19, R-20), intervention

(R-24) or 3rd party practice (R-14) (impleader)a. PI (14: impleader), N (19: necessary party), J (20: permissive joinder), V

(intervention); not permitted (no supp. juris.) b/c original action based on diversity

2. Claims by persons proposed to be joined as Ps through intervention (R-24) or necessary party joinder (R-19), where it would destroy diversity. ISSUE: why not 20(a)?

D. Pendent and Ancillarya. Pendent Jurisdiction: as long as a substantial federal question was involved, district court can hear

nonfederal claims that were pendent – directly related to the federal claim. This power is discretionary. b. Ancillary Jurisdiction: federal court could exercise original jurisdiction over a nonfederal claim if it was

i. Great weight of authority requires independent ground of jurisdiction always be established by each P seeking to proceed against a new D.

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ii. CASE: United Mine Workers v. Gibbs – Gibbs test of jurisdiction allowed federal court to hear a state law claim arising between citizens of the same state when the federal and nonfederal claims arise from a common nucleus of operative fact.

1. Gibbs Factors for Declining Supp. Juris. a. (i) Novel or complex issue of state lawb. (ii) State claim predominates base claim(s)c. (iii) District court has dismissed base claim(s) (if dismissed for lack of subject

matter, must dismiss state claim)d. (iv) In exceptional circumstances if there are other compelling reasons

iii. CASE: US v. United Mine Workers – (can’t disregard appealable order) when court issues order based on supplemental jurisdiction, can party disregard the order b/c it is appealable? No. Supplemental jurisdiction applies and order must be obeyed under penalty of contempt.

E. Cases from before § 1367 a. CASE: Kroger: became codified in [28 U.S.C. §1367(b)] - P tried to bring claim against impleaded party

directly under R. 14 6/7th sentence, no independent base for SMJ, meets constitutional standard, but court said 1331 won't allow it, claims frustrating purpose of diversity.

i. Tries to prevent collusion.

b. CASE: Finley P sued non-diverse D for federal securities fraud (exclusive federal jurisdiction), then added state law claim about same activities against non-diverse D2, met constitutional case requirement, but court wouldn't allow saying it would frustrate 1332. Holding doesn't make sense, 1332 is to allow federal judges to opine about federal law

F. Effect on other Claimsa. Counterclaims:

i. Compulsory Counterclaims: counterclaims from same T&O are deemed ancillary and do not require independent jurisdictional grounds to support it (supplemental jurisdiction applies).

ii. Permissive Counterclaims: must have independent jurisdictional grounds to support it.

b. Cross-Claimsi. Supplemental Jurisdiction Always Applies: Since the cross-claim must be closely related to

existing action, it is always deemed within ancillary (supplemental) jurisdiction of the court. No independent ground for federal question is required.

1.18.3 WHEN MUST YOU GET PERSONAL JURISDICTION? A. Summary: If SMJ is achieved with joinder rules – either joinder on its own SMJ or through supplemental, then

we need to apply Personal Jurisdiction analysis:B. How was the claim joined?

a. Claims :i. 13(a) => counterclaims against already existing parties, then PJ is satisfied automatically b/c P

waived PJ and cannot challenge the counterclaim on venue grounds. E.g. P->D, D counterclaims against P.

ii. 13(b) => permissive counterclaims against already existing parties, majority view that PJ is satisfied automatically b/c P waived PJ and cannot challenge the counterclaim on venue grounds.

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iii. 18(a) => Joinder of claims in complaints against same defendant. Must have PJ and venue with each cause of action, otherwise it would violate due process to tag D which then brings D under all suits that P may have against him by subverting personal jurisdiction on other claims.

iv. 13(g) => cross-claims against already existing parties, for D’s the same transaction or occurrence is satisfied in the joinder rule itself, so PJ would be automatic. Venue is not an issue b/c the venue statute takes all D’s into account. Between P’s, PJ is waived b/c they chose the forum to litigate in.

v. 14 (6) and (7) => actions arising out of impleader, cannot challenged b/c the parties are already in court (6th sentence -> P waived PJ, 7th sentence => if there is PJ over impleaded party, you can bring actions against them).

vi. 18(a) => claims joined under 18(a) cross-claims, impleaders, 6th sentence and seventh sentence can challenge on PJ grounds. Venue for the claim must also be satisfied b/c there are no strong reasons of convenience to litigate unrelated claims in the forum. (the reason they are all unrelated is b/c these parties can counterclaim all related causes of actions).

C. How was the party joined? a. Joinder of Parties:

i. 19 and 20(a) => must have PJ over every defendant; otherwise it is a violation of due process. Venue statute itself looks at residence of each defendant.

ii. 14 => Impleaders. An impleaded party can challenge the impleading on PJ grounds, but not on venue grounds b/c the venue statute already accounted for the impleader.

iii. 13(h) same t/o => cross-claims and counterclaims that join new parties. D can challenge PJ. Anyone dragged before a forum has a right to challenge that court’s asserting power over her. Venue cannot be challenged b/c it makes.

iv. 13(h) different t/o => permissive counterclaims that join new parties. D can challenge PJ. Anyone dragged before a forum has a right to challenge that court’s asserting power over her. Venue can also be challenged b/c efficiency reason for having them in same venue is not there since it is not on same t/o.

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Main Civil Procedure Outline

Documents

Transcript of Main Civil Procedure Outline