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OUTLINE CIV PRO – TRANGSRUD – Fall 2011

I. PERSONAL JURISDICITON (PJ)-what state can we sue D in?A Court must have power over something

1. D 2. D’s property

Analysis: 1) Does the statute grant PJ? If yes2) Does the DP Clause allow it?

A. In Personam Jurisdiction-power over the D

1. General in personam jurisdiction-D can be sued in the forum from anywhere in the world2. Specific “ “- D is sued on a claim that arises from activity in the forum3. If D doesn’t object to personal jurisdiction its waived –Court does not have a duty to est.

personal jurisdiction—easy to waive under Rule 12 h1 defense serve the person within the forum (catch them in state domicile person –(McMillan) (can sue them even if temporarily absent) corporation—can always sue in the state of incorporation can be sued if you consented to be sued in a particular place

1. The Constitutional Limit

Pennoyer v. Neff-physical power of ppl and state: gives us the traditional basis for in personam jurisdicaion

1. D was served with process in the forum “presence”: gives general jurisdiction 2. D’s agent was served with process in the state 3. D is domiciled in the state: general jurisdiction4. D consents to jurisdiction

Hess v. Palowski- hurts Mass P and leaves before #1 serve process. Mass. Statute-drive a motor vehicle in the state and get in an accident-you have appointed a state official as your agent for service of process

o Consistent with Pennoyer-there was service of process of the agento Expands personal jurisdiction to implied consent: current in every state.

Non-resident motorist act: specific jurisdiction -acts arising from within the state

A. International Shoe-new doctrinal formula not expansion

Jurisdiction if the D has such minimum contacts with the forum so that exercise of jurisdiction does not offend “ traditional notions of fair play and substantial justice ”

1. Flexible doctrine that has led to expansion 2. Clear can serve process on D outside the forum-with min contacts met3. Does not overrule Pennoyer-test IF D is not present when served—implies this an addition to the

traditional basis4. 2 parts: contact and fairness

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Rule: D may not have to be present within the territory of forum, he have minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play

In personam requirements under Shoe (rule applies to people and corp) 1. minimum contacts between non-resident D and the forum (incl. benefit, quantity, intentional,

related2. fair to impose burden on the D

Magee v International Ins. Co. 1953- TX co. sold 1 contract of ins. In CA. Sued in CA for breach. Was jurisdiction under International Shoe

1. D solicited contract from CA2. Ps claim arose directly from contact in the forum: relatedness3. State’s interest: CA protecting its citizens

Limiting: Hanson v. Denkla 19581. When applying International Shoe the contact must result from D’s “purposeful availment” to the

forum-(Magee but not Hanson)2. The unilateral act of another

WWVW Corp. v. Wilson 1980-Family from NY move to AZ, never get there. Rear-ended in OK and the car blew up

Litigation in OK. Question of whether there was jurisdiction over the regional distributor-no business in OK, and the realtor in NY (seaway motors)

No Jurisdiction-No purposeful availment Forseeable?-Ct said foreseeability is relevant, but not enough just for the product to get there Need to be foreseeable that the D will get sued in the forum

Calder v. Jones- need not enter the forum to be subject to suit there under Int’l Shoe, need not enter to have an affect in the forum-Calder Effects Test

The Liberty Interest in Personal Jurisdiction: There is some kind of consent of jurisdiction in the state you reside—part of that political process Can have a set of rules that help show a purposeful relationship such that they’ve chosen to affiliate in

Burger King v. Rudzewicz 1985-two guys sued in Miami Reaffirms two prong Int’l Shoe Test 1. Contact 2. Fairness Must have a relevant contact before fairness can be examined Burden is on the D to show that the forum is so “gravely inconvenient” that D is at a “severe

disadvantage on the D”—they didn’t-relative wealth didn’t matter availed themselves to FL to enter 20 year relationship, incl. in contract-question of

Asahi-“ stream of commerce” (must discuss both theories—NO Law here) selling valves to other states A, B, and the other companies send to more states C,D, E

Split in the Court: MENTION BOTH if arguing stream of commerce 1. Brennan’s camp: there is a contact if I put my product into the stream and reasonably anticipate that it will get to state C, D, E (then D is purposefully availed)2. OConnor: You need #1 PLUS an intent to serve states C, D, E

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B. Service of a Natural Person: Bernam NJ D sued in CA, on a claim that took place in NJ (therefore CA must have gen jurisdiction) D was served with process in CA Do the traditional basis like service in the forum survive or have they been replaced by Int’l Shoe

SPLIT CT! No Law, mention both1. Scalia: presence when you’re served is good on its own (don’t need Int’l Shoe-traditional

basis) (doesn’2. Brennan: Must do Shoe every time. Traditional basis are gone (had enough benefit in 3

days-avail) (would mean anyone there for 3 days could have juris even if not served in forum and incident occurred anywhere in the world)

All 9 justices agreed there was general jurisdiction ANALYSIS:There is general jurisdiction if there is “continuous systematic ties” with the forum (where the line?)

Obvious ex: Ford HQ in MI, can sue Ford in MI for something that happened in Siberia Goodyear: Corp must be at home in the state for general jurisdiction

Comparing Asahi and McIntyreAsahi two part test

1. O’Connor: -Ashahi didn’t purposefully direct its tire sales in CA. The facts that its tire valves ended up there is not sufficient for minimum contacts

2. Brennan-Awareness that the large number that would enter CA is all that required for jurisdiction

Asahi two part test for Personal Jurisdiction: All agreed it would be unfair if not: minimum contacts choice of forum reasonable (#1 burden on D and secondary reasons )

McIntyre

Intended to market product in all 50 states—purposeful availment test is met D choosing to enter into the benefits of the state “degree of purposeful affiliation” is paramount –dissent and concurring Concurring saying though that one contact is not minimum contacts No great weight put on a foreign co., but some briefs address international law—proper test is

looking at foreign corp and the entire nation

SPECIFIC JURISDCTION

1. minimum contacts 2. looking at whether the contacts are sufficient for jurisdiction

o Still more factors to consider—secondary factors cited and relied on but in other cases they disappear

o Asahi and McIntyre don’t place a lot of weight on secondary factors o PJ in cyberspace- same set of criteria

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A: Events attributable to D occurred in Forum but not related to litigation—contacts don’t count heavily (would need substantial contacts) upper right

C: Attributable to D, occurred in forum a related to (center) just need minimum contacts—most powerful and persuasive to allow forum to assert jurisdiction

D: Events not attributable to D, occurred in the forum, and relate to the lawsuit—bottom center—WWVW

If not related to lawsuit—need substantial contacts

TEST Under Const. Analysis:

1. Does a traditional basis apply? If so, mention it and mention the split in Bernam 2. Do International Shoe- have to if not traditional basis, and if so the Brennan school would still do it

under Berman

a. Is there a relevant contact btwn D and forum (2 parts)i. purposeful availment- D must reach out in some way

ii. must be foreseeable that D could be sued there b. Is jurisdiction fair?

i. Does the P’s claim arise from D’s contact with the forum? 5 fairness factors the court mentioned in addition

1. Inconvenience for D (BK says it’s tough to show) 2. State’s interest3. Π interest4. Interest in efficiency 5. Interstate interest in shared substantive policies (Kulko-refused jurisd. for family

harmony)

2. Statutory Analysiso really the first question before Const. analysis: Does a state statute allow for PJ?o every state seems to allow based on the traditional basis o every state has a non-res motorist act Hess –specific jurisdiction o every state has a LONG ARM STATUTE- allows state to go after a non-resident, mostly laundry list

long arms-things D can do to be subject to jurisdiction (enter contract, business)

EXAM CLASSIC: Test w/ statute saying: we have jurisdiction of a non-resident who “commits a tort in this state” Under similar facts courts vary as to whether there was a tortious act

Some Cts say its where the injury took place and others say its where the manufacturing took place

Gray v. American Radiator(1961): defective valve was installed on water heater, causing injury in IL. the act giving rise to the lawsuit has a “substantial connection” to the state

Analytical framework

1. Find a statute (is there one to allow jurisdiction) (there is NO traditional basis-so has to be a long-arm statute2. Lets say MD has a long arm: have jurisdiction over residents that commit a tort in MD.

o -some courts: tort is where the injury occurredo -other courts: not met b/c the tort is where the thing was made (VA)

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o ARGUE BOTH

3. Would jurisdiction be constitutional in MD? (Int’l Shoe) 1. IS there a relevant conduct btwn D and MD- was there purposeful availment?

Look for Facts! Isn’t it just like WWVW? What if there are other facts? a) No one knows where the line is drawn- ARGUE BOTH WAYS ASSESS EVERY FACT!

4. Foreseeability- argue on facts both ways and come to a reasonable conclusion5. Relatedness- specific jurisdiction or general?- specific—if D has a contact in MD then suit arises directly from it6. Fairness- does it comport with fair play and substantial justice- BURDEN ON D

1. Is the inconvenience on the D? (neighboring state-hardly a burden) BBK2. State’s interest3. Ps interest4. Efficiency5. Shared subst. policies

RULE 4 K- such service is proper if Fed court can rely on state long arm statute where Fed courts sit (actual location) . Then, the court is subject to all of the same constitutional restrictions.

o Therefore, the territorial jurisdiction of state courts is the same since they rely on the same long arm statute as the state court and is held to the same constitutional constraints

CITIZENSHIP 1. Domicile 2. place of incorporation

CONSENT 1. by Contract 2. by waiver (Rule 12) (Ins. Corp of Ireland v. Des Bauxites)

MIN CONTACTS + not unduly burdensome (does this Asahi two part test survive?-McIntyre doesn’t address)

DECIDING MIN CONTACTS Purposeful affiliation-intentionality Quantity of contacts Continuous-sporadic Degree of benefit Relatedness

(Secondary) REASONABLENESS FACTORS (Brennan-minority would want these to add up) P’s interest Forum’s interest (safety of highways) Choice of Law Evidence-effect on judgment

NECESSITY civil status (marriage) –fugitive spouse title to property –assume jurisdiction for everyone in an effort to resolve the dispute

PHYSICAL SERVICE w/in FORUM REASONS burden on D interstate federalism fairness secondary factors

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political consent

What is fairness? same as burden on D? same as rxableness and some secondary factors ?

B. In Rem and Quasi in Rem: jurisdiction over D’s property (always prefer in personam)

In rem: The dispute is about who owns that property

Quasi in rem: QIR the dispute has nothing to do with the ownership of the property

attachment: property is attached solely as a reason for obtaining jurisdiction –attach a non residents land even if it has nothing to do with the land itself

Pennoyer- initial case was breach of contract, so he attached Neff’s property and proceeded quasi in rem—underlying dispute had nothing to do with ownership

Pennoyer held that In Rem and Quasi in Rem is ok if the property is attached at the outset of the case

Today:

1. Have a statute: an attachment statute (we can seize property that D owns or claims to own)2. Constitutional test:

a. Schaeffer v. Heitner- seizing prop at the outset is not enough. D must in addition meet International Shoe

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II. NOTICE

A. Service of Process. Fed Rule 4 (FRCP 4- for fed cts and states have their own)

1. Process consists of a summons (symbol of gov’t power) and a copy of the complaint: contents of summons in 4a1

2. Service can be made by any non-party who is at least age 18 4c23. Long arm statute allows service of process anywhere in the US4. How to serve an individual? 4e2 alternatives

a. Personal service- hand the papers to D anywhereb. Substituted service-

i. must be at the Ds dwelling or usual abodeii. Serve someone of suitable age and discretion who resides there (the butler, but

not the babysitter, but temporary au pair for 6 mos yes) c. Service on the D’s agent (sometimes appointed by law- non resident motorist ect)

d. 4e1- allow methods permitted by state law (where Fed ct sits, or state where service to be effected) (ex. Service by mail allowed under most state law)

4. 4H1 Service of Process of a business: an officer or managing or general agent (sufficient responsibility to expect her to transmit impt papers)

5. Waiver of Service 4d: not service by mail but waiver by mail

Send the process and waiver form, to waive formal service and P files it. If she doesn’t have a good reason for waiver, process will be served and she will have to pay

for it.

B. The Constitutional Standard

Mullane - notice must be reasonably calculated under all the circumstances to apprise the party of the proceeding

All of the methods under Rule 4 meet the constitutional test even if D doesn’t get it (ex: serve process on wife and puts it in the shredder)

Flag Jones v. Flowers: if you become aware that D hasn’t gotten it, you may have to try other steps (state kept mailing cert. letters to D, and they kept getting returned, knew he wasn’t getting notice)

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III. SUBJECT MATTER JURISIDICTION –SMJ

SMJ: what could do we go to in PA? Are we going to State Court or are we going to Federal Court? Personal jurisdiction: over parties SMJ: over claims

Federal Courts have limited SMJ (Article III)A. Diversity of CitizenshipB. Federal Question

a. States and Fed courts may have concurrent jurisdictionb. Very few areas are exclusively for federal ?-bankruptcy, admiralty, patent, copyright

If you meet one of these two you may go to Fed Court

State Courts Can hear any kind of case at all. One exception: some Fed ? cases must be brought in fed court (few: bankruptcy, patent

infringement)

A. Diversity of Citizenship – 1332a1 of the Judicial Code (statute)Requirements: 1. Case between citizens of diff states 2. Amount > 75K

1. Case between citizens of different states1. Know complete diversity rule: No diversity if any P is a citizen of the same state of any D

2. All of the plaintiffs must be diverse from all of the defendants (Complete Diversity Rule, Strawbridge) –if local D is not found liable other D gets no protections

1. Citizenship of a natural person: Citizen of the state where domiciled Mas v. Peeryi. Est. domicile: physical presence

ii. Form the intent to make it your permanent home iii. Only have one domicile at a time and you always have one

1332 a2: alienage—citizen of a different co. is a test not domicile -Danger of local bias against aliens, and state courts might resolve cases in a way that might offend a foreign nation.

1332-administrators of an estate in a suit are technically citizens of the decedent Alien v. Alien? Const. doesn’t allow based on the 9 cases allowed in federal court

Citizenship of a Corporation ; 1332c1: can have two places

i. State where incorporated ANDii. Citizen of the one state where it has its principal place of business (ppb)

a. Test: Hertz Corp: The nerve center: The PPB is where the managers direct, control, and coordinate corporate activities (before Hertz was a split)

iii. Citizenship of a non incorp business- no statute: Look to citizenship of all the members ex: lawfirm has partners with citizenship of 15 states, partnership can be citizen of 15 states, and teamsteers cannot be sued in Fed court)

3. The amount in controversy exceeds 75K 1. Must exceed 75K to a legal certainty (irrelevant want the ultimate reward is) 2. Ps claim governs unless it is clear to a legal certainty that she can’t recover more than 75K

(ex: statutory ceiling on recovery, but hard to predict pain and suffering eg)

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3. Aggregation: when add two or more claims to get over 75K i. Rule: aggregate P’s claims if there is one P vs. one D (do not have to be related

claims, can be a tort and a breach) ii. Rule: cannot aggregate if there are multiple parties on either side 2 Ps each with

their own claims sue a single Defendant. Two claims for 40K)iii. Rule: with a joint claim use the total value of the claim and the number of

parties is irrelevant- not personal injury

Hypo: Joint tortfeasors beat one person up, and total damages is 76K, it is ok b/c any one of them could be liable for the full amount.

JUDGE MADE EXCEPTIONS

Even if complete Diversity and more than 75K can fall outside due to the domestic relations and probate exceptions (not in the statute)

Law that governs the relation of the members of the family has been governed by state law and administered by state courts (even special courts Family Law)

B. Federal Question Cases: (FQ) 1331--Citizenship and amt in controversy irrelevantTest: Claim must arise under federal law

Well Pleaded Complaint Rule: Look only at the claim and ignore the extraneous Motley

Is the P enforcing a Federal Right? o If Yes—Fed Cto If no- not an FQ

MOTTLEY RULE: Federal defenses nor federal counter claims give rise to federal subject matter jurisdictions: for state law claim does not subject it to federal jurisdiction---could make a case down the line

C. Supplemental Jurisdiction

For every claim in federal court there must be Fed SMJ (incl. cross claims ect) What if additional claims doesn’t meet Fed Q or Diversity?

Try supplemental jurisdiction 1367: lets a federal Ct hear a non-diversity non-fed claim once a case is already in Federal Court

Mineworkers v. Gibbs: one P, one D, two claims 1. Federal labor law 2. State law claim

1. P(TN) ---------------------FQ (violate Fed labor law)----------- D (TN)

2. P ---------------------------State Law -----------------------------

Both arose from same dispute

1. Yes Fed Ct

2. No diversity, no FQ BUT there is supplemental jurisdiction

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Why?

Gibbs Ok if claim 2 and claim 1 share a common nucleus of operative fact (same overall dispute)

Gibbs is always met if claim arise from same transaction or occurrence T/O

Now codified: 1367

1. Does 1367 a grant jurisdiction? Yes if it meets Gibbs2. Does 1367 b take it away? (read the rule!)

a. ONLY APPLIES TO CASED BROUGHT INTO FED CT IN DIVERSITY CASES b. Only applies to some claims by PLAINTIFFc. If defendant was joined under Rule 14, 19, 20, or 24, no supplemental jurisdiction

i. No supp juris for claims against TPD by Pd. If plaintiff joined, analyze under Exxon(Rule 20, 23 plaintiffs okay as long as one member

meets diversity)e. Exxon when one claim has amt in controversy and any other claim from common nucleus

of fact.

3. does not extend to claims by Ps to persons made parties under various joinder rules 4. 1367 c) supplemental jurisdiction is discretionary-claims that would otherwise be ineligible but

are made permissible by the statute. The trial judge can decide whether or not to take jurisdiction of the claim (most do—makes sense to decide factually related claims not just the anchor)

a. Exxon: Parties joined under Rule 20 do not contaminate the case nor 23b for class actionsb. Exceptional circum , justice requires, permissible

Ancillary

P sues D in fed ct. D has a counterclaim that is a state law claim Citizens of same state -ancillary extends to counter claims P sued D1 and D2 in same state—cross claims like counterclaims qualify for ancillary as long

as arises out of the same transaction or occurrence Prevents having to sue in different courts for counter claims and cross claims

Pendent party –most controversial

P has fed claim against D1 P has state claim against D2 no diversity but two claims are factually related

-SC usually says no---by definition state law claim through non diverse parties –two different courts have to be used –draw the line at expanding supplemental juris

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D. Removal Jurisdiction –allows a DEFENDANT to have a case filed in state ct transferred to fed ct

1441, 1446, 1447

1. It is removable if the case meets Fed SMJ: Removal in fed? Cases same as original: does it arise under federal law? If so it can be removed

2. EXCEPTION: Cannot remove a diversity case if any D is a citizen of the forum state (doesn’t apply to FQ cases)

3. All Ds must agree4. Must remove within 30 days from service of the document that first makes the case removable (ie

notice that the party ruining diversity settled)5. Remove only to the Fed. District that embraces the state court where it was filed (built in venue

rule ex: St Louis—ED MO)6. A federal counterclaim (or defense) does not make the case eligible (should’ve sued first buddy)

Shamrock Oil & Gas Corp. v Sheets USSC 1941

1441- Borough of W. Mifflin

Class Actions: CAFA- Class Action Fairness Act 2005

Class actions can be brought in Fed court but States have their own rules—found some states were more sympathetic to Ps—so Ps favored bringing in some State Districts

Expanded scope of original diversity jurisdiction Minimum diversity: Only one of the Ds has to be citizen of a different state than P (ie P NY, DNY,

DFL). Between adverse parties . Citizenship of P = class , can be changed a lot in CA Case can be removed if any one D wants to remove it Fact that one or more of Ds are citizens of the forum state doesn’t prevent removal in diversity

cases

USC1446 Procedure for Removal diversity cases have to be requested to be removed within a year—not relevant for federal question cases

Variations: CMU v. Cohill USSC 1988—District Court has discreation ot remand supplemental state claims after determing that retaining jurisdiction over the case would be inappropriate

1367(c) US District Court’s discretion to remand

Diversity cases complicate things: Can remove only if complete diversity and amount in controversy requirement is met Cannot remove if any of the Ds are citizens of the forum

EX: FL P to NYD1 and CAD2---cannot be removed to Fed in NY

West Mifflin: 1. Nothing in 1367 c authorizes a district court to decline over which it has original jurisdiction 2. 1367c cannot legitimately be invoked to affirm even the district court’s remand of the state claims.

In removal cases, venue is always proper—D’s decision to remove is treated as consent If venue is proper over the anchor claim that brings the case into Fed Ct, venue is also proper

under the supplemental jurisdiction rule

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IV. VENUE

SMJ tells us we can go to Fed Ct. Venue tells us where P can bring the claim Co- Ds, counterclaims, TPD not subject to venue claims: exception—subject to all others

Rule 19b party can still object to venue thoughIdea is that if venue proper in original claim it would be for others

A. Basic Provisions-if P applies for Fed Ct (not for removal) 1391 a &1391b

1391a- Diversity cases choices

1391b-Fed Q

1&2 for both are identical

1. Law venue in any district where one D resides if all defendants reside in the same statea. If all Ds reside in the same state you can lay venue where any one of them reside. b. Resides: reside in the district where you are domiciled c. 1391c-businesses reside-in all districts where subject to PJ

--OR--2. Any district where the substantial part of the claim arose

1391a3 and 1391b3 rarely apply-only come up if there is no district in the US that meet 1391a 1-2 or 1391 b1-2

Diversity: Determine residence? Statute doesn’t define it, but many courts use domicile same as defining citizenship in diversity cases (implies only one residence)

Other Courts have said, Congress didn’t use domicile on purpose and should put it in ordinary meaning. Possible to have more than one residence

Corporations: subject to any judicial district that is subject to personal jurisdiction (minimum contacts) if the judicial district was a state

In a state with multiple districts the court must have min contacts with the district

B. Transfer of Venue- transfer case from one fed district to another fed district.

Transferor-original federal court, Transferee-to which it transfers UNDER BOTH STATUTES, THE TRANSFEREE MUST BE A PROPER VENUE AND HAVE PJ OVER

THE D. both have to be true independently—no waiver allowed

1404a, 1406a 1404-applies when the transferor is a proper venue (2nd location also proper)

Where can you transfer the case to under 1404? Hoffman only where the P could’ve brought the lawsuit properly in the first place

28 USC 1406- improper (transfer from improper-proper venue) (statute of limitations cases won’t bar transfers)

Improper venue may be waived also if D finds it more convenient1404: Original venue is proper but can transfer based on

Convenience for the parties and witnesses and The interest of justice Looking to see if the other court is the center of gravity(the other place makes more sense-

witnesses, stuff is there)

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Public and private factors –what makes more sense, what law applies ect Totally discretionary

1406-gives choice: Transfer to proper venue or Dismiss - venue in original FED CT is improper- only substantially important when SOL Ferins

28 USC 1407- proper: Panel on multidistrict litigation: decides whether or not to transfer cases to a venue –consolidate them to

Standards: convenience of parties and witnesses & promote just and efficient process Impt: the degree of which common question of facts are shared by the Ps (ex: pharma

sometimes don’t share all of the factual issues)

Venue is H1 defense- so can easily be waived Use choice of law rules in original forum for state cases when there is a transfer: Van

Dusen Rule: Law applicable to the transferor follows the transfer

C. Forum Non Convenes : a court dismisses because there is another court that makes more sense

Must be a forum open to the P- must be avail remedy in the other place (SOL, SMJ) Args for FNC: Events giving rise to the claim is somewhere else, ppl affected, evidence, mnfr of

plane, which law is likely to apply

Why dismiss?—Transfer is impossible (transfer is in a different judicial system)

State Ct of AL to State Court of KS---No can do! Usually comes up when ctr of gravity court is in a foreign co. Piper Aircraft v. Reno- plane crash in Scotland, pilot, passengers was Scottish but the plane

was manfr in the US. Ended up in Fed Cts in Mid Dist. Of PA. USSC said district court should dismiss under forum non convenes regardless if they would recover less.

Pro Defendant-foreign countries often don’t allow punitive or for Ps to recover as much.

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VI. The Eerie Doctrine (1938)

Federal Ct under Diversity—Look for:

Fed judge must decide an issue Question is must she apply state law?

RULE: If the issue is a matter of substantive law, judge has to go with state law

Eerie: Required by the Rules of Decision Act, and also required by the Constitution (10th Amend-states retain powers not expressly given to the Fed gov’t)

How do we know if something is substantive? (ex. Eerie involved the element of a claim—always substantive- define liability)

Start by looking at Hannah—two separate doctrines: Hannah and EerieHannah prong:

1. Is there a federal law on point that directly conflicts with state law? (FRCP, Fed statute)2. If Yes—apply the federal law (as long as its valid-supremacy clause)

Test validity on the REA (rules enabling act 2072):

Eerie prong (when there is no federal directive on point)

If it’s a matter of substance judge must follow state law…how do we know? Find out Transgrud’s theory of Eerie

1. Outcome determinative - Guarantee Trust (under the statute SOL he couldn’t file and filed in Fed Ct under diversity. Could the Fed Judge ignore state SOL? No. It is substantive b/c it is outcome determinative. Not clear how its limited

2. Balance the interest - Byrd v. Blueridge- issue of state law decided by the judge not the jury. No federal directive, pure eerie. If something is not clearly substantive still follow state law unless the federal court system has interest in doing it differently. Fed interest outweighed it, but no limitiations

3. Twin Aims of Eerie - AVOID: 1) forum shopping 2) inequitable administration of law . To apply ask question when case is filed: If the Fed judge ignores the state law, will it cause parties to flock to federal court?

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VI. PLEADINGS: claims defense Rule 3,7,8,9, 12(e), 84

A. ComplaintGenerally: #3: A civil action is commenced by filing a complaint with the court

#7: a) Pleadings allowed: complaint, answer to a complaint, ect b) Motions and other papers 1) general: a request for a court order must be made by motion –a) be in writing unless made during a hearing or tiral b) state with particularity the groudns for seeking the order and c) state relief sought 2) Form

Only one pre answer motion allowed

1. 8A requirements1. Statement of subject matter jurisdiction2. Short and plain statement of the claim Twombly, Iqbal3. Remedy: Make a demand for relief

Notice pleading- federal rules have avoided the word facts and making them claim facts, just for giving notice.

Changes: Twombly, Iqbal—higher pleading standard

2. Judging a claim under rules of Twombly, Iqbal 1. Court will ignore conclusions of law 2. Plaintiff must plead facts supporting a plausible claim (not enough to be possible)3. Court will use its own experience and common sense

By imposing a fact-intensive standard at the 12(b)(6) stage, Iqbal threatens to prevent plaintiffs from accessing discovery in the first place

Twombly retires Conley where courts at the 12(b)(6) stage merely took a quick look at the complaint to determine if the plaintiff could prove some set of facts entitling him to relief. 

assume what’s alleged in the complaint and reasonable inferences from the complaint is true Sorema

Some courts require defense to meet same standard of Twombly and Iqubalo Plausibility justified by “show” lang in Rule 8o Not for affirmative defesnes expressly in Rule 8 so some courts say no basis for plausibility

standard

3. Rule 9b, 9g- certain times to plead in greater detail

9b- allegations of fraud or mistake must be made with particularity 9g- special damage must be made with specifity

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4. 54 (c): Demand for judgment: relief to be granted-default judgment msut not differ from what is demanded in the pleadings. Every other judgment should grant what is entitled even if not pleaded

What is an acceptable complaint? Federal 1) Caption-Court, what type of pleading, title (if its complex or going to receive attention—

write an overview)2) Jurisdictional statement – basis for jurisdiction3) Parties – who the people are 4) Background of facts5) Series of Counts –I-Negligence, II-strict liability 6) Wherefore-remedy

RULE 11- signatures and sanctions SANCTIONS ARE ALWAYS A SEPARATE MOTION Every pleading, motion, paper must be signed- but sanctions need some kind of misconduct Sanctions, rules on misrepresentation of pleadings, motions to the court Motion for Sanction: challenged paper is withdrawn or appropriately corrected withing 21 days

after service under Rule 5 Formed pleading ect. after inquiry reasonable under circumstances—11b-factual contention

warranted on evidence or are rxably based on belief or lack of info

B. The Defendant’s Response: Rule 12 Respond in 21 days Choices: respond by motion, or by answer

Rule 12 motions12e-motion for definite statement (can’t respond to complaint-unintelligible)

o must be filed before filing a responsive pleading –if the court orders a more dfeintie statement and the order is not obeyed within 14 days after notice, the court may strike the pleading)

12f-motion to strike (cut out what doesn’t belong in the pleading-ie claim for jury)

i. RULE 12 b Motions to dismiss-7 defenses raised by motion or by answer 12 b defense:

1. Subject matter jurisdiction-doesn’t belong in Fed Ct (never waived)2. PJ3. Venue4. Insufficient Process5. Insufficient service of process6. Failure to state a claim7. Failure to join an indispensible party R19

2. Rule 12g and h- read together have strict rules about waiver

Meaning in three rules

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1. 12b 2, 3, 4, 5 must be put in your first Rule 12 response (motion or answer) or else they are waived

2. 12b 6 and 7 can be raised for the first time anytime through trial 3. 12b 1 can be raised anytime in the case (incl on appeal) –w/o smj it’s unconstitutional

Important notes on Rule 12: One motion- unlimited Ds Dismissals without prejudice: Dismissal for lack of subject matter jurisdiction or personal

jurisdiction, (its in the wrong court)---P is free to file again in the proper place ---also true of insufficient process or service of process—

21 days after answer —can file an amended answer without permission from the judge —BUT, Rule 12 H(1) –an amendment as a matter of course, do not need court’s permission—if you omit an H1 defense from the answer and realize your mistake you have 21 days under 15(a), after that however its waived

No action required by judge or P for an amendment If motion to dismiss is not on legitimate - sanctioned under Rule 11 Can assert all of H1 defenses in the answer, not just pre answer motion—just if you’re going to do

pre-answer you are subject to rule 12 If P files a new complaint, you can assert in your answer to amended answer defenses to new

complaint—can only assert defenses not available at the time you filed your answer Post answer motion to dismiss is possible –then the other side can respond and have a hearing Answer—serve it on the Plaintiff’s lawer—just give it to them and file the answer with the court—

have 21 days (Rule 6a says which days count)

3. Must haves in an answer

1. 8b: respond to the complaint: admit, deny, or maybe don’t know (only if info not in control) Failure to deny is an admission (except damages) (must deny all or specifically)

2. Assert affirmative defenses: 8c1 (affirmative D’s raise something new) (SofL, statute frauds) Can raise defenses in addition to those listed in 8 C. INGRAHAM v. US (1987)

Rule 8c- Responding to a pleading, a party must affirmatively state any avoidance or affirmative D including assumption of risk, duress, fraud

C. Amendments and Supplemental Pleading: Rule 15 a) Amendments before trial

1. (1)- Amending as a matter of course: a party may amend its pleading once as a matter of course

a. (A)(B)- within 21 days (allow amendment as a matter of course)2. 2) post pleading but pre-trial: All other cases a party may amend its pleading only with the

opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

b) Amendments during and after trial (still allowed at times, difficult complicated and expensive to allow the other side to research amendment—otherwise risk of prejudice to the party). Moore v. Moore

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c) Relation back—When an amendment to pleading is counted as if in the original pleading: relates back Beeck v. Aquaslide 1977 Court of Appeals, Krupski v. Costiere USSC 2010, Worthington v. Wilson 1993

Closer to trial date, more resistant Common law- you were stuck with your original pleading Before trial motions to amend should be liberally granted (after 21 day period) Court can allow extra time for the other side if amendment is a surprise The standard for whether an amendment should be granted depends on the time at which

Amendment is being sought (above)

C1c- dates back to date of original pleading when it changes party, and if in period provided by rule 4m—(120 days to serve a summons and a complaint) . Time period of when the proper party gets notice is withing 120 days within filing of the plea---but under 15c1-120 days after statute of limitations standard

II. Joinder Rules- define the scope of the case Rules: 14- 24

a. Encourage and permit complex joinder and Rule 23 allows class actionb. With qualifications, allow the liberal joinder of parties c. Allow multiple ps to sue a single, Multiple Ps to Ds, counterclaims, cross-claims d. After every single claim where there is a joinder has to have PJ or SMJe. Must bring a summons and complaint to a new partyf. Misjoinder is never grounds for dismissing a claim (court can sever) 21

A. Claimed Joinder by the Plaintiff- Rule 18A:

1. Allows unrestricted joinder of claims2. No restriction on joining claims against the same party 3. P can join any claim she has against D (No restriction on joining claims against same party) 4. Then have to assess Subject Matter Jurisdiction- can it get into Fed Court

B. Claimed Joinder by the Defendant-D asserting a claim (suing someone)

1. Counterclaim-asserted against an opposing partya) Compulsory 13A- arises from same transaction or occurrence T/O of the plaintiff’s claim. Must

assert that claim or you lose that claim. ONLY COMPULSORY CLAIM IN THE WORLD b) Permissive-13B any counterclaim that’s not compulsory-not arising from same T/O.

EVERY CLAIM MUST ASSESS SMJ! If compulsory allowed under Gibbs 1367(a)(from same transaction or occurrence and Gibbs is

braoder but does 1367 (b) take it away? Applies to diversity cases and only takes away supplemental

jurisdiction from claims by plaintiffs

Hypos walk through: Compulsory DiversityFederal ?--> 1367 a and 1367bNever say supplemental j (1367 a-b) until go through diversity or federal Question

2. Crossclaim- 13g claim against a co-party and must rise from the same T/O as the underlying case. Never compulsory. Can bring a pre-answer motion instead of answering if faced

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Compulsory counterclaim is the only mandatory claim. Hypo: 3 persons driving, three way class, assume every claim is for more than $75

Compulsory counterclaims always meet Gibbs-1367

A (VA) sues B (NY)

C (NY)

Every claim more than 75K

What claims can we assert for C

1) C should file a compulsory counterclaim against A—arises from the same occurrence, have to assert or lose the claim.2) That invokes diversity3) C may assert a cross-claim against B- co parties and same T/O- ok under 13g4) But now no diversity! NY-NY5) Check supplemental jurisdiction : 1367a cross claims from same T/O. 1367b- Its ok b/c these two are Ds

RULE 20

Joinder of parties: each claim has to be factually related

Law of Claim preclusion (not same as joinder)

Not mandatory, but Res Judicata has the effect of making it mandatory to bring all transactionally related claims

Must seek all the legal conclusions, remedies, that arise from the same occurrence—if has property and Personal Injury damages he has to sue it in the first lawsuit—can split remedies or damages

Must assert all of the available legal theories—if you sue the mfr and assert N claim, you’ll be precluded to bring aother suit on a SL- Can’t bring multiple lawsuit out of the same T/O

C. Proper Parties- RULE 20A

i. Co-Plaintiffs 20a1. 1. May join together in a claim if from same T/O. 2. They raise at least one common question or are factually related.

Ps can proceed on different theories and claim for different relief with multiple Ps and Dsii. Co-Defendants (20a2)- same test

THEN MUST ASSESS SMJ- can the case get into Fed CT

D. Necessary and Indispensible-who must be joined RULE 19

What do we do if an important party is not sued at the start of the law suit? This happens when: diversity jurisdiction would be lost 2) the court lacks PJ, or 3) the impt

party enjoys sovereign immunity. A- non party- absentee who is necessary can be forced into the case

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Steps: Is A necessary or required? Yes if meet ANY of three tests 19a1 b: should go through all Without A the court cannot accord complete relief among the parties (efficiency) The absentee’s interest may be harmed if she is not joined *19a1b1 The absentee’s interest may subject the Defendant to a risk of multiple or inconsistent

obligations *19a1b2Joint tortfeasors are never necessary Temple

Hypo: 1,000 shares in XYZ corp. Freer claims we bought it together and paid half the purchase price and we agree to own it jointly. Ask corp to reissue stock. Freer suing corp. do they need me?1. without you court cannot accord complete relief? --y—if corp cancels stock I would bring another suit

absentee’s interest may be harmed The D (corp) could get hit with multiple inconsistent obligations—we both win?

2. Is joinder of the absentee feasible? Must be feasible to join 19b need pj won’t destroy diversity –SMJ, Venue

c) if not a and b, court can either proceed without the absentee or dismiss the entire case -19b 4th factor in 19b: should not dismiss the case unless P has an alternative forum If the Court dismisses we call the absentee indespensible 12b7-motion to dismiss indespensible

party.

INTERPLEADER: 1335 USSC

It allows a plaintiff to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. An interpleader action originates when the plaintiff holds property on behalf of another, but does not know to whom the property should be transferred. Eg Pan American Fire and Gas

interpleader is proper not to protect the liability carrier for Trial judge under Rule 42 can severe claims if appropriate if things get too complicated or some other reason

minimal diversity- one P differs from one D and $500 in controversy

E. Impleader: RULE 14

A derivative suit from an anchor claim (14a1) A defending party (Can be a P hit with a cross claim) joins a new party. Third Party Defendant

(TPD). The TPD maybe liable to the Defending party for the Ps claim Usually for indemnity or contribution-deflect you liability for another

2 joint tortfeasors- P sues one of the joint tortfeasors

TPD (NOT A CROSS CLAIM!)

P------- D

Rule 14 gives two more claims to be asserted

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Under Rule 14a- P can assert a claim against TPD as long as its derivative from Defendant’s claim and TPD can assert a claim against P

THEN- Assess SMJ! Can’t use supplemental unless the anchor claim is a federal claim. If its diversity cant use Supp Juris

F. INTERVENTION-RULE 24-A non-party brings herself in choosing which side to be on.

1. Once a person intervenes they enjoy all of the rights an original party would have 2. Motions to intervene are liberally granted when the intervening party has a legit interest in the

outcome of the case 3. Smuck v. Hobson-DC de-segregation

1. Show not adequately represented (school board didn’t appeal) 2. Make application to intervene in a timely way (wasn’t until SB decided not to appeal that they

realized their interests weren’t represented-seemingly same interests at the beginning)

2 Types: both must be timely

1. Intervention of right- 24a2: absentee A has a right to intervene if her interests may be harmed if she doesn’t come in –same rules as “necessary parties”

a. Court could rule that this person is a 19a party- destroy diversity2. Permissive intervention-24b2: the absentee A has to show that her claim or defense and the

pending case have at least one common questiona. If they destroy diversity they can’t join

EITHER WAY MUST ASSESS SMJ

G. The Class Action : the rep sues on behalf of a group

1. The Prerequisites: 23aa. Numerosity (there must be too many for practicable joinder) b. There must be commonality : Question of law, facts Walmart v. Dukes: class failed to meet

commonality requirement (1.5 mill discrimination)c. Representative suffer same kind of harm as class members

i. Class representative has to be a member of the class (ie trade assoc. not qualify)ii. Rep will adequately rep interests of the class

d. Class must be identifiable and adequately defined (degree of specificity depends upon the remedy being sought

e. Typicality - similar claims and defenses2. Types of class: 23b1, 23b2, 23b3

a. 23b3 –damages class (voluntary)i. Common questions predominate over individual questions

ii. Show that the class is the superior method for resolving the disputeiii. Mass tort: bus fly off the road- indiv. question about damages. Most impt part is

whether the driver was N. Argue the class action is the best way to handle it iv. Can have a class action on individual issues

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b. B2- equitable (mandatory) Meant to facilitate ppl coming forward as a group and seek an injunction against discriminating): Can sue as long as the injunction predominated over the monetary remedy –most lower courts accept this

c. B1a-incompatible standards (rare) : risk subject to d. B1b- limited fund: lots of contingent damage claims against a co. with limited funds (early

Ps get everything) (mandatory)3. Motion to certify: court blessing for class action- must define the class and appoint class council

(judge) 4. Notice of pendency:

a. Court must give individual notice to all members reasonably identifiableb. 23c2b- they are in the class and they are bound if they do not opt out c. THIS NOTICE IS ONLY REQUIRED IN 23B3

5. All class members are bound by the judgment except those who opted out of a B3-THERE IS NO OPT OUT OF A B1 OR B2 (mandatory classes)

6. Settlement or Dismissal of a certified class- either must be approved by the court Rule 23ea. Usually give notice and courts get feedback on settlement

7. Subject Matter Jurisdictiona. Sometimes a federal questionb. How do you invoke diversity?

i. For citizenship you look only at the rep not the class members ii. Only need the rep diverse from all the other members

iii. 2005 Allapatah – it is ok if the reps claim exceeds 75K and the class members claims do not matter

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IX. PRE TRIAL ADJUDICATION

2 motions: 12b6 and summary judgment

A. 12b6- motion to dismiss failure to state a claim (whether any litigation necessary)

Court cannot look at evidence—only the FACE of the complaint If all the facts alleged were true, would P win-does the law recognize this Twombly must plead fact and a plausible claim Sometimes points out sloppy pleading –can dismiss with leave to amend

B. 56-Motion for Summary Judgment- the court CAN look at evidence (gotten past 12b6)

Standard: The moving party must show (in order to get a trial)

1. On the evidence, there is a genuine dispute on a material fact2. She is entitled to judgment

ONLY GO TO TRIAL TO RESOLVE DISPUTES OF FACT –parties offer the facts (usually via affadavits-signed evidence)

Matsushita, Anderson, Cellotex- courts should loosen up and enter summary judgment

It is ALWAYS DISCRETIONARY Rare for P to win Usually tougher in Tort cases than Contracts Do not weigh or judge affadavits, just needs to be a dispute on a material issue of fact.

XII. Preclusion doctrine- claim and issue preclusion

(Res Judicata and collateral estoppel)

Case 1- went to judgment first—judgment entered

Case 2- pending. Does the judgment in case one preclude the court from litigating anything in case 2? Is there claim or issue preclusion.

A. CLAIM PRECLUSION –(start here, res judicata)

You have one lawsuit to adjudicate a claim

Three requirements:

Element 1-show that both cases were brought by the same claimant against the same D

Element 2- case 1 ended in a valid final judgment on the merits RULE 41b-all judgments are on the merits unless they are based on jurisdiction, venue, or indispensible parties

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Element 3- both cases involve the same claim?

Majority def of claim: a T/O Minority def of claim: primary rights –you have a different claim for each right invaded

(property vs. body)

Hypo: Lois and Meg driving and they collide. Case 1-Lois sues meg for personal injuries. Case 2: Lois sues Meg for property damage from the same crash. Do we dismiss case 2 for res judicata?

1. yes its met 2. Final judgment on the merits 3. Same claim in both cases? Split of authority Maj yes- minority-she is suing on a different claim

Case 1- Lois sues meg—wins Case 2: Meg sues lois

1) does not meet the first requirement—brought by different claimant against different claimant 2) Case dismissed on COMPULSORY COUNTERCLAIM not RES JUDICATA

B. Issue Preclusion (collateral estoppel)

There was an issue in Case 1, same issue in Case 2—not going to re-litigate the issue. Res judicata can get rid of the entire case but issue preclusion can at least narrow it.

Issues: X, Y, Z, A and A is answered—next case eliminates A

1. Case 1 ended on a valid final judgment on the merits2. Show that the same issue was actually litigated and decided in case 1 (not from default judgment)3. Show that that issue was essential to the judgment in case 14. Against whom is preclusion used? Can only be used against somebody who is a party to case 1

(includes privity-classaction) Req. by DP5. By whom is it used—

a. mutuality rule—(rejected in some jurisdictions) Can only use this if you were a party to case 1

b. Non mutual issue preclusion – (alt. to mutuality rule) Used by someone who was not a party in case 1

i. Non mutual defensive issue preclusion/collateral estoppel- the person using CE or IE in case 2 was not a party in case one, and is a D in case two

Hypo: own a car, and have a roommate. Roommate borrows your car—VL for what the roommate does. Roommate collides with another. Case1: Freer sues roomie—D wins—Freer was N Case 2: Freer sues auto owner ---no claim preclusion different claimants

Is there Issue preclusion or IE

1) valid final judgment on merits- yes2) Yes- same issue litigated3) Issue was esstential to the judgement- Yes4) Yes- against a party to case 15) By whom is it being used—non mutual—auto owner is not a party to case 1—today majority

allows it as long as the D had a full chance to litigate in case 1