Civil Procedure I - Abramowicz - 2_3.doc

8/20/2019 Civil Procedure I - Abramowicz - 2_3.doc

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Personal Jurisdiction

1. The Originsa. Personal Jurisdiction – court is authorized to exercise power over the

defendant. Need Constitutional and Statutor re!uire"ent for #urisdiction.

$. %n &e" Jurisdiction – Jurisdiction over propert. Settles everone'sinterest in the propert.c. (uasi %n &e" Jurisdiction – Jurisdiction over a person $ attaching their

propert that resides in the state. Judg"ent can onl $e found for thevalue of the propert.

i. Tpe 1 – the dispute is a$out the propert. Settles the specificinterest $etween the parties over the propert.

ii. Tpe ) – dispute is a$out so"ething else and the propert is onlused to gain #urisdiction over the person.

d. Plaintiffs can sue anwhere* so ou do not consider personal #urisdictionfor plaintiffs.

e. Capron v. +an Noordeni. ,acts- Capron's place of residence or citizenship was never stated.Jurisdiction was not esta$lished needed alienage* diversit* or $oth parties were within #urisdiction/

ii. 0olding- Plaintiff has a right to tae advantage of an error of thecourt in su$#ect "atter #urisdiction* even if that error was to theiradvantage $ecause su$#ect "atter #urisdiction is an i"portant $asisof the court sste" and the court2s responsi$ilit to esta$lish.

f. Pennoer v. Neff i. 0olding- To have in persona" #urisdiction $ either serving the

defendant within state $oundaries O& $ having the defendant2s

consent of #urisdiction $ his appearance in court1. 3due process of law 14th a"end"ent/ would re!uireappearance or personal service $efore the defendant could $e personall $ound $ an "one #udg"ent rendered3

). To esta$lish in re" #urisdiction* 3constructive3 notice o ifthe propert in the state has alread $een attached $eforethe lawsuit

ii. Power 1. Personal service in the state is re!uired for personal

#urisdiction. Personal service outside of the state does notconfer #urisdiction.

). 5ue process allows that courts onl have power overindividuals that are present in the state. &esident of thestate or found in the state. Consent $ "aing anappearance can find #urisdiction.

6. Sovereignt discussed to support presence re!uire"ent.Court has power over people7things in state and does nothave power over people7things out of state.


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4. %n re" #urisdiction could ield power over a person if their propert is attached in state $efore co""ence"ent of thesuit/.

iii. Notice1. Personal service is re!uired for the court to exercise

authorit or the due process clause is violated.). Constructive service is not valid notice for personal #urisdiction* $ut is enough for in re" or !uasi in re" #urisdiction.

g. 0arris v. 8al i. Jurisdiction can $e found if a de$t or intangi$le propert is present

in the state and attached. (uasi in re" #urisdiction.ii. ,acts- 5efendant's propert was attached and seized* $ut was

unrelated to the plaintiff's clai"/h. 0ess v. Pawlosi

i. 8 driving on the roadwas of a State ou are consenting to

#urisdiction. State has power over anone driving on its roadwasand gets in an accident.i. 9echanics

i. Special appearance – allows a challenge of #urisdiction withoutconsenting or opening ourself up to service of process.

ii. 1) $/)/ "otion to dis"iss for lac of personal #urisdiction. :ou"ust challenge #urisdiction with this pre;answer "otion or in theanswer or ou consent to #urisdiction.

). The 9odern Constitutional ,or"ulation of Power a. &edefining Constitutional Power

i. %nternational Shoe Co. v.


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d. Single or occasional acts that are related "a $eenough depending on the nature and !ualit ofcontacts.

@. Aeneral Jurisdictiona. =xa"ine all contacts. Continuous and sste"atic

contacts are needed for general #urisdiction.Su$#ects the person to #urisdiction for an suit. $. Aeneral #urisdiction can $e esta$lished if the

defendant's contacts with the state are su$stantialenough to "ae it fair for the state to exercise #urisdiction over clai"s unrelated to the contacts.

B. Specific Jurisdictiona. Consider onl related contacts. Su$#ects the person

to #urisdiction onl for the particular suit.ii. 9illien v. 9eer

1. 5o"icile is enough for general personal #urisdiction.

). 5o"icile is 1/ the ho"e or principal esta$lish"ent of the person and )/ where the intend to re"ain indefinitel. $. $sor$ing %n &e" Jurisdiction

i. Shaffer v. 0eitner 1. Standard of "ini"u" contacts that do not offend

traditional notions of fair pla and su$stantial #ustice presented in %nternational Shoe should appl for in re" #urisdiction.

). Just $ecause propert is in a state* does not "ean it isConstitutional to have #urisdiction over the owner of that propert. Stoc that resides in the state is not enough.

6. 5is"isses tpe ) !uasi in re" #urisdiction for intangi$le propert* thus overruling this point in Pennoer.

a. Tpe ) – dispute is a$out so"ething else and the propert is onl used to gain #urisdiction over the person.

4. Tpe ) !uasi in re" #urisdiction over real propert "a still $e valid.

@. 5irector status of the 5elaware Corporation does not give #urisdiction $ecause it is not per"itted $ statute. Need $oth Constitutional and statutor authorization.

B. 8asicall* propert "ust $e related to the case to esta$lish #urisdiction if other contacts are lacing.

D. Overrules 0arris v. 8al ii. Carolina Power v. Eranex

1. People attach propert for securit and to o$tain #urisdiction.

). The unrelated propert was attached in this case forsecurit. Since there was alread #urisdiction in another


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court* the propert was onl attached to ensureco"pensation for da"ages decided in that court.

c. Specific Jurisdiction- The 9odern Casesi. 9cAee v. %nternational Fife %nsurance

1. ,acts- The co"pan contacted the person in the state and

"ade a polic with hi" when he was in the state.). 0olding- 9ini"u" contacts were sufficient for specific personal #urisdiction $ecause the co"pan purposefullavailed itself to doing $usiness in the state.

6. &ationale-a. =ven though the original insurer and the respondent

didn't ever have an agent or office in california* thecontract for life insurance/ was delivered in thestate* the pre"iu"s were "ailed fro" there* and theinsured was a resident of the state when he died.This is sufficient for purposes of due process

$ecause it esta$lished su$stantial connections in thestatei. so it didn't preclude the california court

fro" entering a #udg"ent $inding therespondent.. lso appears respondent hadsufficient notice and ti"e to prepare for thesuit/

$. 5oing $usiness in a state "eets due processre!uire"ents for a foreign corporation $ecause thehave su$stantial contacts in the state

ii. 0anson v. 5encla1. The polic was esta$lished in another state and then the

person "oved to the state where #urisdiction is $eingsought.

). Enilateral "ove"ent of a $uer does not confer #urisdictionover the seller. The seller "ust purposefull availthe"selves to doing $usiness in the state.

iii.


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e. Su$stantive interests of several states.4. Purposeful vail"ent

a. Test is not forseea$ilit that there will $e a contactwith a state* $ut there "ust $e a purposeful action tohave a contact with a state.

i. H&easona$le expectation of $eing haled intothe #urisdictionI $. ,or specific #urisdiction we "ust deter"ine if the

related contact is sufficient and then if the contactwas purposefull availed $ the defendant.

i. Hunilateral activit of those who clai" so"erelationship w the non;resident defendantcannot satisf the re!uire"ent of contactwith the foru" stateI

@. Strea" of Co""ercea. Not reall decided in this case. nowing products

"a end up in a state through the strea" ofco""erce is not enough. =xpectation the will $esold in the state through the strea" of co""erce"a $e enough.

iv. ulo v. Superior Court1. ssessing Contacts

a. 5aughter lives in state.i. Not sufficient.

$. The couple was "arried in state* $ut onl re"ainedthere for three das.

i. Not sufficient $ecause the never lived thereand never "aintained their "arriage there.

c. 8ought one;wa ticet for daughter to state.i. Not sufficient $ecause it was not a

purposeful act. Just gave per"ission to go.d. Send child support pa"ents.

i. Not enough $ecause 5 had no control overwhere he sent pa"ents.

). Court exa"ines each contact individuall.6. Sa"e standard as +olswagen. 9ust loo at related

contacts and deter"ine if the were purposefull availed.a. 5efendant did not purposefull avail hi"self to the

laws and protections of the foru" state. 0e derivesno personal or co""ercial $enefit fro" his child's presence in C. Fac an other relevant contractwith the State.

v. 8urger ing v. &udzewicz1. &efine"ent of test "erged into two parts/-

a. Test for "ini"u" contacts $. Test for fairness and su$stantial #ustice


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). Once "ini"u" contacts that were purposefull availedhave $een deter"ined* and then we will consider fairness.

6. %n this case* "ini"u" contacts were esta$lished $ thefranchise contract which had su$stantial connection withthe state purposeful avail"ent esta$lished/* $ut #urisdiction

rested on the deter"ination of fairness. Court found it to $efair $ecause &udzewicz was aware he "a $e su$#ect to #urisdiction in ,F and it would not disadvantage hi" tolitigate in ,F.

vi. sahi 9edal %ndustr v. Superior Court1. Suit resulted fro" an inde"nit clai" arising out of a suit

with #urisdiction in C. Original suit was settled.). ,airness nalsis

a. 8urden on 5 is too great $ecause the would haveto co"e fro" Japan to C.

$. Not a large state interest for C. The interests of

C have $een settled and this is $etween twoforeign parties.c. 5oes not $urden P $ not allowing #urisdiction in

C since P is a Taiwan co"pan.d. Jurisdiction was not granted $ecause of fairness.

This was agreed $ "a#orit.6. 9ini"u" Contact nalsis

a. Strea" of Co""erce nalsisi. Fi$eral 4/ – placing in strea" of co""erce

was enough for "ini"u" contactsii. Conservative 4/ – placing in strea" of

co""erce was not enough. 9ust purposefull avail itself to the state $specific designing* advertise"ent* andseeing out custo"ers in state.

iii. Nothing is reall decided on this issue.d. Aeneral Jurisdiction

i. %ntro1. Aeneral #urisdiction for corporations in states/ where-

a. The corporation is incorporated $. The principal place of $usiness

i. H"uscle centerIii. HNerve centerI – ad"inistrative

head!uarters). Aeneral #urisdiction for individuals-

a. Place of do"icilei. Fast place where the person-

1. Fived? and). planned to re"ain indefinitel

ii. see 9illien v. 9eer


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$. where the individual has such su$stantial contactsthat it wouldn't offend notions of fair pla andsu$stantial #ustice to esta$lish #urisdiction

ii. Coastal +ideo Co""unications Corp. v. The Stawell Corp.1. ,acts- Coastal video filed action in +irginia for a

declaration that their hand$oo did not infringe on ra"es'coprighted hand$oo that was si"ilar in nature.a. Coastal video is a +irginia corporation who sells

products to co"panies throughout the ES. $. ra"es is a 5elaware corporation with its principal

place of $usiness in C.i. ra"es sells it products throughout the ES*

including + in the past and presentl. lsosold products to 6 hospitals in +.

ii. No indication that the disputed hand$oowas ever sold to the hospitals. No proof that

the hand$oo was sold in +* even over theinternet.iii. ra"es is !ualified to do $usiness in + and

"aintains a registered agent in the state.). 0olding-

a. The court does not have specific personal #urisdiction over defendant $ecause the declarator #udg"ent does not arise fro" the sale of thedefendant's pu$lication

$. The court grants the plaintiff's "otion for discoverof infor"ation related to general #urisdiction overthe defendant.

i. Need continuous* su$stantial* extensivecontacts with the foru" state.

iii. 0elicopteros1. The crash that the suit arises out of has no specific contact

with Texas. 9ust deter"ine if all the co"panies' contactsare sufficient for general #urisdiction in Texas. 0elicoptertransport services were provided in South "erica

). Contactsa. Negotiation in 0ouston

i. Not enough* not continuous and sste"atic $. ccepted checs fro" Texas

i. Not enough* out of their controlc. Purchased helicopters and received training in TK.

i. Not enough* not continuous and sste"atic* $uing product in a state is not enough

d. Conclusion- No purposeful avail"ent. Contactswere insufficient to support general in persona" #urisdiction.


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6. Jurisdiction $ Necessita. Jurisdiction when there is no where else to sue. $. Not considered $ the court. Court has not

deter"ined whether or not this would $eConstitutional.

iv.


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prevents ou fro" $eing served. %n federal court ou would file arule 1)$/)/ "otion.

iii. %nsurance Corp. of %reland v. Co"pagnie des 8auxites de Auinee1. 5 filed a 1)$/)/ "otion to dis"iss for lac of personal

#urisdiction. Then 5 refused to co"pl with discover

orders that were needed to gain evidence to deter"ine #urisdiction. Court dis"issed "otion as a result.). 5 clai"ed that the did not have to co"pl with the courts

order $ecause the court did not have personal #urisdiction.6. Court held that $ filing the 1)$/)/ "otion* 5 consented

to #urisdiction for the purpose of deter"ining #urisdiction.4. The outco"e had to turn out this wa or ou could never

investigate to deter"ine if there is #urisdiction.@. See"s to $e $etter for people who do not respond at all*

since the can use a collateral attac to !uestion #urisdiction after the default #udg"ent has $een entered* $ut

the do not get to tr the actual suit. $. 8 Contracti. Carnival Cruise Fines v. Shute

1. Can consent $e given in advanceG :es if the foru" chosenis funda"entall fair.

). ,oru";selection clauses are valid if the foru" would have #urisdiction if suit was $rought there and it is fair "eaningdone in good faith and not discouraging litigation.

4. The Constitutional &e!uire"ent of Noticea. Pennoer v. Neff under %nternational Shoe

i. Jurisdiction "ight $e found constitutional $ased on "ini"u"contacts test* $ut could disallow #urisdiction for insufficient notice.

ii. Should exa"ine power and notice separatel. $.


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1. 9ail service at "ini"u" $ecause it would $e reasona$lcertain to reach H"ostI of the people.

a. %n this case* notice reasona$l certain to reach "ostof those interested in o$#ecting it liel to safeguardthe interests of all* since an o$#ection sustained

would inure to the $enefit of all.). 9ail service "a not alwas $e enough. 9a re!uire personal service if "ail service is not reasona$l calculatedto give notice.

6. Plaintiff is responsi$le to give notice.d. &ule 4

i. Su""ons 4a/ – 9ust $e signed $ cler* list the parties and $eserved with the co"pliant 4c/1/

ii. Service1.


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1. %t is not enough that a defendant has a contact with the statethat is sufficient under the 5ue Process Clause to allow thestate to exert #urisdiction over hi"? state "ust have a statutethat authorizes the court to exercise that #urisdiction.

). The 14th a"end"ent does not actuall confer #urisdiction

on courts? it sets li"its on the exercise of #urisdiction.6. Two re!uire"ents "ust $e "et $efore the court can proceed to ad#udicate the defendant's rights-

a. Court "ust $e authorized to exercise #urisdiction $statute? and

$. %t "ust $e constitutionall per"issi$le under due process analsis to exercise that statutor authorit

i. So"e relations that satisf the due processre!uire"ent-

1. do"icile in a state?). continuous and su$stantial contacts

with it?6. "ini"u" contacts that give rise to aclai"? and

4. service of process on an individual inthe foru" state

iii. Ai$$ons v. 8rown1. The long;ar" statute re!uires a su$stantial and not isolated

activit* so the contacts "a have $een constitutionall per"issi$le* $ut #urisdiction was not per"itted $ statute.

a. Previousl $ringing suit in the foru" state* evenrelated to the current suit* does not necessarilsu$#ect one to #urisdiction in the state for the purpose of defending a suit in this case

$. Fong;ar" statute re!uires su$stantial and notisolated activit within the state

i. %n so"e cases* $ut not this one* $ringing suitin the state "a fulfill this re!uire"ent.

1. given the length of ti"e $etween thesuits and the defendant in the previous suit not $eing na"ed in thissuit* there is no #urisdiction

iv. &ule 4/ – Territorial Fi"its of =ffective Service p. 1 of ,ed. &.Civ. P. $oo/

1. ,or federal court use the state long;ar" statute.). P sues 51 and 51 sues 5) over sa"e action.

a. %f 5) is within 1 "iles of the place where thesu""ons was issued then 5) can $e $rought into #urisdiction. – H1;"ile $ulgeI


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6. %f not su$#ect to #urisdiction in an state* then the person issu$#ect to #urisdiction in an federal court that isconstitutionall per"issi$le.

$. +enue as a ,urther Focalizing Principlei. +enue is not #urisdiction. %t can $e waived. 0ave to deter"ine

#urisdiction $efore deter"ining venue. %f ou're tagged in a #urisdiction ou "a have #urisdiction* $ut not necessaril venue.ii. State Court nalsis

1.


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iv. 5ee; =nterprises* %nc. v. 0eveafil Sd". 8hd.1. Claton ct – prohi$its $ehavior that "ight $e perfectl

legal in the place that it occurs* $ut is illegal under ES lawa. llows for world;wide service of process. $. Section 1) of the Claton ct las venue in an

district where the defendant is HfoundI or Htransacts $usinessI). 16Q1d/ eli"inates an venue i"pedi"ents to suit in this

district with respect to foreign defendants $ecause the* asaliens* "a $e sued in an federal #udicial district

6. The "erican defendants "a $e sued in an district whereone of the" "a $e found* as pursuant to 16Q1$/6/. %t isunclear whether venue is proper under this section in the=astern 5istrict of +.

a. Plaintiffs "ust show that venue in this district is proper of the action "a $e transferred to the


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iii. Cost to witnesses $. Pu$lic %nterest ,actors – how it affects govern"ent

i. Court congestion7#ur dutii. Focal interest in deciding local controversies

iii. pplica$le law* easier for court to appl its

own law.c. %f there is no re"ed in the appropriate foru" thencourt cannot re#ect #urisdiction and venue* $ut if it isonl less favora$le law then it can.

d. P "ore convenient for Piper defendant/ $ecause-i. %ts where their place of $usiness is

ii. %t has #urisdictioniii. Closer to $ritain than Civ. P #udges "ore a$le to appl P law than

C #udges6. Aulf Oil Corp. v. Ail$ert

a. Court stated that a plaintiff's choice of foru"should rarel $e distur$edi. 5epends on private and pu$lic factors

Subject Matter Jurisdiction

1. The %dea and Structure of Su$#ect 9atter Jurisdictiona. ,ederal courts are courts of li"ited su$#ect "atter #urisdiction. $. Need Constitutional and statutor authorization for su$#ect "atter

#urisdiction.c. ,ederal court #urisdiction is Constitutionall per"issi$le if-

i. ll cases arising under federal law ,ederal (uestion/ 9osti"portant/

ii. "$assador casesiii. d"iralt casesiv. ES is a partv. State vs. State

vi. State vs. Citizen of another statevii. Citizen vs. Citizen of another state 5iversit/ Second 9ost/

viii. Fand Arantsix. lienage- ,oreign countr person is a part Third 9ost/

). ,ederal (uestion Jurisdictiona. ,or federal !uestion #urisdiction ou need Constitutional and statutor

authorization. $. The Constitution allows federal !uestion #urisdiction for cases Harising

underI federal law. This is interpreted to $e ver $road.c. Cases arising under federal law can also $e $rought in state court – nown

as concurrent #urisdiction.


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d. Statutor authorization is under ) ESC 1661 – uses the sa"e languageas the Constitution Harising underI federal law/* $ut is interpreted less $roadl.

e.


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). The well;pleaded co"plaint rule should appl to thehpothetical co"plaint that the declarator defendantwould have filed

g. Circu"stances where federal law incorporates state law-i. 4/1/ – state long;ar" statute is used.

ii. 4e/1/ ; Service of process is valid if state validates it.iii. Aa"$ling laws have federal offenses that incorporate state lawh. Circu"stances where state law incorporates federal law-

i. S"ith v. ansas Cit Title M Trust1. State law prohi$ited investing in illegal securities $ased on

federal laws.). The securities invested in were issued $ a federal agenc.6. The plaintiff is clai"ing that the statute authorizing the

federal agenc is unconstitutional and thus the state law isunconstitutional* so this is an offensive "ove "aingfederal !uestion #urisdiction appropriate.

ii. 9errell 5ow1. Congress can create an o$ligation without creating a causeof action. Congress did not want a cause of action for theo$ligation in this case.

). %f state law allows a cause of action for the o$ligation thenthe state is allowing circu"scription of congressionalintent.

6. Nothing stopping the" fro" $ringing the clai" in statecourt. The cause of action was not dependent on federallaw.

4. This is different fro" S"ith $ecause it is clear congress didnot intend a cause of action in this case and it was not clearin S"ith.

@. %f Congress intended not to create a cause of actiona. No federal !uestion #urisdiction 9errell 5ow/

B. Otherwisea. ,ederal !uestion #urisdiction S"ith/

D. 1Q6 – llows ou to sue for protection of ourconstitutional rights.

6. 5iversit Jurisdictiona. 166) is the statute authorizing diversit #urisdiction. $. 9as v. Perr

i. Perr is a citizen of Fouisiana.ii. 9r. 9as is citizen of ,rance and 9rs. 9as is a citizen of

9ississippi* although the lived in Fouisiana for so"e ti"e. Sincethe did not intend to re"ain there indefinitel* the were notdo"iciled in Fouisiana. 5iversit existed in this case.

c. Straw$ridge – 5iversit "ust $e co"plete for all partiesi. although Congress authorizes federal #urisdiction when there's

"ini"al diversitR courts haven't extended it this far/


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d. Citizenship-i. Citizenship is in what state the person is do"iciled.

1. 5o"icile-a.


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i. &ose v. Aia"atti – &ose wants this suit in state court* so he #oins9F8 to prevent diversit. Aia"atti was a citizen of N:. Courtfound that 9F8 was collusivel #oined onl to defeat diversit.

. 5o"estic &elations M Pro$atei. There is no diversit #urisdiction for these cases.

ii. &eason – we have special courts for these and the don't want totae up the federal court ti"e with these suits.l. Saadeh v. ,aroui

i. "end"ent to 166)a/ – if an alien is a per"anent residentalien/ of a state then the are considered a citizen of the state thereside.

1. 9eant to avoid diversit when an alien per"anentlresiding in a state sues a citizen of the state or vice versa.9eant to reduce diversit #urisdiction.

ii. %n this case it see"s to $e expanding #urisdiction.1. ,acts- Aree citizen suing a Jordanian citizen that

per"anentl resides in 9arland. %f Jordanian citizen isconsidered a 9arland citizen then there would $ediversit.

iii. ,inding70olding- The court finds there is not diversit $ecause thestatute read literall did not follow the legislative intent and* if #urisdiction is granted* this "ight $e against the diversit clause inthe Constitution.

iv. =xtras-1.


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iv. ggregation – =ach person "ust $e over the legal li"it or the people "ust $e considered as a single in#ur.

1. 5a"age to house and "an and wife suing* ou canaggregate.

). Aet in auto accident and "an has in#ur and wo"an has

in#ur. Cannot aggregate $ecause two separate in#uries. %nthis case each in#ur "ust $e over D@*. 9ust have aninsepara$le right to the in#ur.

6. :ou can aggregate da"ages for "ultiple clai"s for ourself against the person B clai" L ) clai" is o/* #ustnot clai"s fro" different parties.

4. The D@* da"ages "ust $e that high for each defendant.4. Supple"ental Jurisdiction

a. Once ou have a federal !uestion clai"* ou can add a state law clai". $. Ter"inolog

i. Pendant

1. Sa"e plaintiff $rings federal and state clai" against thesa"e defendantii. ncillar

1. The plaintiff sues the defendant and then the defendant suesso"eone else.

). P sues 5* 5 sue K6. P sues 5* 5 sues P counter;clai"/4. P sues 51 and 5)* 51 sues 5) cross;clai"/@. Pendant part ; P sues 51 in federal court and 51 $rings

5) into the suit or P $rings 5) into the suit. Third Part/c. ldinger

i. Plaintiff sues one defendant on a federal clai" and another on astate clai"* $ut there's a co""on nucleus of operative fact

ii. Court sas there's no #urisdiction over the state clai" defendant1. 8oth clai"s could $e $rought in state court

d. Enited 9ine


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a. 5oes not go to the full extent of the Constitution. $. %f the state clai" predo"inates over the federal

clai" then the #udge has discretion to dis"iss it.c. %n deter"ining supple"ental #urisdiction the #udge

considers-

i.


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a. New Part added under ,&CP 14* 1Q* )* or )4 $. Sued 8 Plaintiff c. Could not have $een initiall na"ed $ plaintiff

$ecause we would have had onl state clai"swithout co"plete diversit.

iii. c/ – codified things discussed in Ai$$s. Can decline supple"ental #urisdiction if- #ust sends the state clai" $ac/1. Clai" involves a novel new and undecided/ or co"plex

issue of state law). The state clai" su$stantiall do"inates

a. Proof* da"ages* evidence6. The federal clai"s/ have $een dis"issed4. =xceptional circu"stance catchall of an reason not

thought of where the federal court should not hear the case/@. These factors are decided through the discretion of the

#udge and can onl reverse for a$use of discretion.

iv. d/ – tolling provision. Tolls clai"s for period of filing plus 6das. %f ou #ust "ae the statute of li"itations and ti"e passes $efore the state clai" and the statute of li"itations runs out $eforethe clai" is re"anded. :ou have the re"ainder of the statute ofli"itations plus 6 das to re;file. Enless state law allows for alonger period of ti"e.

h. ,reei. Ender 16BD$/ – &ule )6 for class actions/ was not included

ii. Clar-1. Na"ed plaintiff has diversit if the a"ount in controvers

re!uire"ent is "et* $ut the rest of the class does not "eetre!uire"ents then there would not $e diversit.

). ll plaintiffs "ust "eet the #urisdictional a"ountindependentl

iii. Vahn – re!uired each "e"$er to $e diverse for class actions anddid not allow supple"ental #urisdiction for the rest of the "e"$ers.

1. Ender the literal reading of the statute there would $esupple"ental #urisdiction for the re"aining class "e"$ers $ecause &ule )6 was not listed under 16BD$/.

). 0owever* Vahn had $een well;esta$lished law and thelegislature did not sa it "eant to overrule Vahn and theo"ission of &ule )6 was a "istae.

6. The court held that Vahn was overruled $ecause the statuteshould $e read literall $ecause the result would not $ea$surd.

4. Other courts have gone the other wa and read Vahn intothe statute. The Supre"e Court has not decided this issue.

iv. =xxon1. 0olding-


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a. t least one na"ed plaintiff in a class actionsatisfies the a"ount;in;controvers re!uire"ent*then 16BD authorizes supple"ental #urisdictionover the clai"s of other plaintiffs in the sa"e caseor controvers* even if those clai"s are under the

a"ount re!uired $ diversit #urisdiction $. 16BD $ its plain text overruled Clar and Vahnand authorized #urisdiction over all clai"s $diverse parties arising out of the sa"e case orcontrovers

@. &e"ovala. Plaintiff can file in federal court fro" the start or defendant can re"ove to

federal court* so either part can cause the suit to $e in federal court. $. 1441 a/ – can re"ove to federal court if the original well;pleaded

co"plaint could have $een filed in federal court.c. 1441 $/ – The defendant cannot re"ove the suit if the suit could have

originall $een in federal court $ecause of diversit* $ut is filed in the statewhere the defendant has citizenship.i. &eason- the suit is in the person's state* so there should $e no

fairness !uestions adverse to the".d. 1441 c/ – &elates re"oval to supple"ental #urisdiction. 9ight re"ove

a case in state court to federal court as a part of supple"ental #urisdiction.State non;diverse clai" co"$ined with federal clai"/ %f the state clai"arises out of the sa"e nucleus of operative facts as the federal clai"* then $oth clai"s can $e re"oved to federal court.

e. 1441 d/ – if a defendant of a state court clai" is a foreign state the canre"ove the case to federal court.

f. 1441 f/ – it does not "atter if #urisdiction was originall valid in statecourt. %f #urisdiction was not proper in the state court it can still $ere"oved to federal court. 5eals with exclusivel federal clai"s $rought ina state court.

g. 144@ – so"e clai"s are not re"ova$le.h. 144B a/ – if ou want to re"ove the case ou file a notice of re"oval in

the federal court ou want to re"ove to and state a short and plainstate"ent on our grounds for re"oval.

i. 144B $/ – have 6 das after receipt of su""ons and co"plaint to filefor re"oval or 6 das fro" receipt of an a"ended co"plaint if thea"end"ent introduces new grounds that would allow re"oval/. &e"oval $ased on diversit is never allowed one ear after a suit is filed.

#. 144B d/ – defendant is re!uired to send the papers to state court andother parties. The state court "ust stop proceedings while the federalcourt deter"ines if re"oval is proper.

. 144D c/ – can file a "otion to re"and after re"oval has $een filed.Court "a re"and if it has #urisdiction. ,or exa"ple* if diversit existsand federal court #urisdiction would have $een proper* $ut the clai" is


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filed in state court where the defendant lives* so re"oval would not $e proper under 1441$/.

l. 144D d/ – a "otion to re"and is not appeala$le.". Caterpillar %nc. v. Fewis

i. ,acts-

1. Fewis > sues Caterpillar > 5el. M %ll. and .). Fi$ert 9utual 9a./ su$rogates clai" and co"es in as a

plaintiff.6.


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a. Courts of lawi. &e!uired the plaintiff to choose a writ or for" of action to sue

under. The plaintiff had to choose the specific offense and the procedure associated with that offense.

$. Courts of =!uit

i. The e!uit courts had lessened pleading rules. There was a largea"ount of pleading needed to narrow the case.D. &efor"

a. %nitiall. The states essentiall adopted the 8ritish sste"* $ut all co""onlaw courts were "erged into one. So"e states had no e!uit courts* whileothers had a separate Chancer court.

$. ,ield Code of 14i. $olished the for"s of action and created #ust one cause of action.

c. &ules =na$ling ct of 1Q6. Aave Supre"e Court power to trans"it,ederal &ules of Civil Procedure* leading to "erger of law and e!uit andadoption of a regi"e of Hnotice pleading.I

d. ,ederal &ules of Civil Procedurei. $olished the for"s of actions and creates one ind of cause ofaction.

ii. "ore strea"lined approach. 9ore flexi$le and allowed a $road pleading while the ,ield Code still re!uired "ore narrowing down.5iscover was needed $efore the case was narrowed down.

. 8urdens of Proof- Tpesa. 8urden of pleading

i. Part with $urden "ust plead the issue.ii. Plaintiff's failure to do so renders co"plaint su$#ect to dis"issal if

not a"ended.iii. 5efendant's failure to do so concedes relevant point if not

a"ended. $. 8urden of production

i. Part with $urden "ust produce enough evidence on issue toentitle #ur to rule for it.

c. 8urden of persuasioni. Part with $urden "ust actuall persuade decision "aer that legal

standard is "et.ii. Tpicall Hpreponderance of evidenceI is standard in civil

litigation* so $urden acts as a Htie;$reaer.IQ. 9odern Pleading

a. &ule i. a/ has 6 re!uire"ents

1. Short M plain state"ent of #urisdiction). Short M plain state"ent of clai"6. 5e"and for relief.

ii. $/ – introduces defensesiii. c/ – discusses affir"ative defensesiv. e/


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1. 1/ ; re!uires a pleading to $e si"ple* concise M direct). )/ – allows clai"s to $e $rought alternativel

a. Can $ring action under one clai" or another 6. Can $ring "ultiple defenses. Can plead inconsistentl. H%

didn't ill hi"* $ut if % did it was in self;defense.

4. lternative defenses are not usuall used in #ur trials $ecause #uries are thought not to lie inconsistencies. $. 9ini"u" pleading re!uire"ents?

i. "erican Nurses1. ,acts-

a. Nurses were arguing that the pa scale for nurseswas less than #o$s predo"inantl held $ "en.

$. Co"para$le worth – e!ual pa for co"para$lewor. :ou should $e getting paid for what ou aredoing* not $ecause ou are in a predo"inantl "aleor fe"ale #o$.

i. Posner sas it is not illegal to pa peopledifferentl even though the haveco"para$le worth. This is notdiscri"ination $ecause "aret value andde"and could cause the disparit. %f thedifference is $ased on discri"ination*however* it is illegal.

). &ationale-a. Conle v. Ai$son – do not dis"iss unless $eond

dou$t that there are no facts that could $ring relief.i. H co"plaint should not $e dis"issed for

failure to state a clai" unless it appears $eond dou$t that the plaintiff can prove noset of facts in support of his clai" whichwould entitle hi" to relief.I

$. %f ou sa what ou're suing for and do not stateanthing that would $e contrar to the law* then itshould not $e dis"issed.

c. %t is possi$le to plead ourself out of court. :ou can put "ore in a co"plaint if ou want* $ut "a showthat ou do not have a ground for relief and cannotesta$lish a clai".

d. %f ou have a valid clai" and invalid clai" together*the invalid clai" should $e dis"issed* $ut the validclai" should re"ain.

e. Once ou state all of the ele"ents of the clai"* thenthat should $e enough to survive the pleading stage*unless "ore facts are introduced that negate one ofthe ele"ents as a "atter of law.


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f. 0ere* the co"parative wor theor does not wor* $ut if ou loo at certain sentences it is possi$lethe are alleging sex segregation or intentionaldiscri"ination. There is enough to suggest theseclai"s "a $e a$le to go forward* so the can

survive.g. The standards of pleading are ver low. :ou #usthave to sa ou suffered an in#ur and not have allthe details a$out it. The reasons are that ou "aneed discover to deter"ine if what happened isactuall wrong.

1. Special Clai"s- &e!uiring and ,or$idding Specificit in Pleadinga. Stradford

i. ,acts-1. Fapsed insurance. Starts paing pre"iu"s again and is

reinstated. ,iles a clai" less than 1 das after he is

reinstated.ii. nalsis-1. &ule Q$/ ; all aver"ents of fraud or "istae* the

circu"stances alleging these "ust $e given in particularit). Stradford sas the didn't allege when the fraud occurred.6. %nsurance co"pan didn't give a specific ti"e when the

fraud occurred* which "eans that the didn't reach there!uire"ents of &ule Q$/

a. :ou cant #ust s"ell a rat* ou have to produce a rat.Esuall this is done during discover $ut this rulere!uires it to $e done $efore discover.

iii. 0olding- Feave to a"end grantediv. =xtras-

1. &ule Q$/; wh is it re!uired for fraudGa. %t gives the plaintiff notice of which part of his

state"ent is alleged false $. %t li"its fishing expeditions $ the defense to figure

out whether the2ve $een defrauded O& c. argu"ent against rule Q$// ; The "ain ele"ent of

fraud is conceal"ent which is pro$a$l wh weshould allow discover $efore dis"issing a fraudcase $ased on lac of evidence

11. 0eightened Pleading?a. Feather"an

i. ,acts-1. Cause of action was under 4) E.S.C. 1Q6 for violations

of the Constitution under Hcolor of law.I). The defendant is a "unicipalit police depart"ent/6. The co"plaint alleges that the police officers were not

ade!uatel trained. This is an alternative theor $ecause


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the could not sue the "unicipalit for the direct cause ofaction officers went into house and illed dogs/

ii. Procedure-1. The @th Circuit dis"issed the co"plaint $ecause it did not

"eet a Hheightened pleading standard.I The court re!uired

"ore facts to support the allegation and "ention of whatwas inade!uate a$out the training.a. %O


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re!uire"ent. The statute onl has a set nu"$er of ele"entsand these are the onl ele"ents that need to $e alleged inthe pleading.

iv. &ationale7=xtras-1. dditional point not in case- The pro$a$ilit of who is right

is also considered.v. &ehn!uist concurrence – the $urden of pleading "a $e on thedefendant* $ut the leaves open the !uestion of who has the $urdenof persuasion $urden of proof/.

16. &esponding to the Co"plainta. 5's Options

i. ,irst option is to !uestion #urisdiction and venue. 1)$/1/;1)@/ii. =ven if this happened it is not illegal. 1)$/B/ – 1)c/

iii. H


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D. A – Consolidation of defenses in "otions.a. ll "otions then availa$le "ust $e "ade at once. $. &ule 1)h/)/ provides li"ited exceptions for &ule

1)$/B/ which can $e raised again as 1)c// andindispensa$le parties under &ule 1)$/D/.

c. Therefore* failure to "ae a &ule 1)$/);@/ "otionwith another &ule 1)$/ "otion forfeits the "otionnot filed.

d. Technicall* &ule 1)$/1/ "otions "ust $e filedwith &ule 1)$/);@/ "otions* $ut under &ule 1)h/6/* part can offer a HsuggestionI of a lac ofsu$#ect "atter #urisdiction.

. Can $ring 1)$/ "otions with our answer even if ou donot file the" $efore. Once the answer is filed ou will loseour right to file the "otions and lose the su$stance of1)$/)/ – 1)$/@/ "otions $ecause ou have consented to

personal #urisdiction and venue.c. nswer i. 5enials

1. 5enies the allegations. The are untrue.ii. ffir"ative 5efenses

1. n affir"ative defense sas the even if the facts are trueand even if the facts represent a cause of action* % a" notlia$le for the cause of action. Confession and avoidance.

d. "end"entsi. 8eec v. !uaslide N' 5ive Corp.

1. ,acts-a. 8eec is in#ured on slide. $. Several insurance co"panies loo at the slide and

deter"ine it is the !uaslide product. !uaslidead"its that it is their product in the answer.

c. The owner later goes to inspect the slide and findsout that it was not an !uaslide product* so thewant to a"end their answer.

d. 8eec does not want this to happen $ecause thestatute of li"itations has run and the do not nowthe "anufacturer of the slide.

). nalsis-a.


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tring to deter"ine if the"anufactured the slide.

ii. Pre#udice1. There is no pre#udice $ecause the

could still tr to deter"ine it was an

!uaslide product and argue theissue.). lso* there are other possi$le

re"edies.6. 8oth parties should $ear the "istae.

6. 0olding-a. The court allows the a"end"ent and !uaslide

wins the case on su""ar #udg"ent $ecause Courtdoes not $elieve this would undul pre#udice the plaintiffs $ecause it see"s lie a!uaslide did not"ae this "istae on purpose.

4. =xtras-a. fter this case* 8eec sues !uaslide for recless"isrepresentation $ecause the new there werecounterfeit slides on the "aret and did not addressthis in their original answer which caused the8eecs to "iss their chance to sue the actual"anufacturer of the slide. Court upheld recover.

ii. &ule 1@- "ended Pleadings1. 1@a/ – One free a"end"ent $efore a responsive pleading

is served or within ) das if no responsive pleading isre!uired. ou can "ae a change until the part files ananswer or ) das after a non;responsive pleading/ Cana"end a pleading at anti"e if #ustice so re!uires.

a. t other ti"es* part "ust see leave of court orwritten consent of adverse part. Feave Hshall $efreel given when #ustice so re!uires*I $ut inextre"e cases !uaslide th Cir. 1QDD// parties"a $e una$le to den lia$ilit.

). 1@$/ – to confor" to evidence-a. %ssues tried $ express or i"plied consent shall $e

treated as if raised in the pleadings. $. On o$#ection to evidence as outside pleadings* court

shall HfreelI give leave to a"end pleadings when presentation of the "erits would $e advanced andthere would $e no pre#udice to the o$#ecting part

iii. &ule 1@- &elation 8ac 1. &elation 8ac ; ou can a"end our co"plaint to add a

clai" where the statute of li"itations has run. :ou wouldotherwise not $e a$le to $ring the clai" as a separateco"plaint $ecause the statute of li"itations has expired.


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The new clai" gets the sa"e filing date as the originalco"plaint $efore the statute of li"itations has run.

). &ule 1@ c/1/ – relation $ac is allowed if state law allowsit.

6. &ule 1@ c/)/ – allows relation $ac if the clai" arises out

of the sa"e transaction or occurrence.4. &ule 1@ c/6/ – relation $ac is allowed if the wrongdefendant is na"ed if &ule 1@ c/)/ is satisfied* the actualdefendant has enough notice to avoid pre#udice* and theactual defendant new or should have nown the suit was"eant to $e against hi" or her.

iv. 9oore v. 8aer 1. ,acts-

a. %nitial theor of the co"plaint is that the infor"edconsent law was violated.

$. The plaintiff adds a "alpractice clai" after the

statute of li"itations had run.). nalsis-a. %n zar$al* the opposite happened. The infor"ed

consent was $rought after the "alpractice clai" andwas allowed.

i. %n this case* the court does not allow thea"end"ent $ecause the doctor was notgiven notice of the "alpractice clai".

$. %n zar$al* the first clai" was a general clai" andthe second was a "ore technical clai"* so noticewas given.

i. %n this case* the first clai" was the technicalclai"* so the defendant was not given noticeof the general clai".

c. The court does not #ust loo at whether the clai"sarise out of the sa"e occurrence or transaction? itadds notice on top of transaction.

i. %t is not clear whether transaction arises outof the exact sa"e events or the entirerelationship $etween the parties.

d. 0olding-i. Court concludes that the cant a"end

$ecause the consent occurred $efore thesurger and the "alpractice occurred duringor after the surger* therefore the consentclai" did not provide notice that there "a $e a "alpractice clai"

v. 8oner$ v. &ichard J. Caron ,oundation1. ,acts-


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a. 8oner$ was in#ured while plaing $aset$all as partof a "andator treat"ent.

$. The first clai" is a negligence clai" for i"properl"aintaining the $aset$all court.

c. The statute of li"itations runs out and then the

plaintiff adds a "alpractice clai".). nalsis7&ationale-a. The court holds that the clai" can $e $rought

$ecause of the relation $ac doctrine. $. The plaintiff did not act with undue dela or $ad

faith.c. The clai" arose out of the sa"e nucleus of

operative facts as the original clai".d. :ou can loo at the conduct of that caused the

in#ur or the in#ur itself.6. 0olding- %n this case there were ) different causes* so it

would appear not to $e out of the sa"e transaction oroccurrence. 0owever* since it was the sa"e in#ur* thecourt found that the clai" arose out of the sa"e transaction.Courts so"eti"e loo at the cause and so"eti"e loo atthe in#ur* and so"eti"e loos at $oth.

a. There is flexi$ilit in the definition of transaction.Joinder

1. Joinder of Clai"sa. Joinder of clai"s $ Plaintiff

i. t co""on law* a plaintiff could #oin onl clai"s using thesa"e writ $ut could do so regardless of whether the clai"swere factuall related.

$. The ,ederal &ulesi. &ule 1

1. n clai"s against the other part "a $e #oined inthe sa"e suit. ll the clai"s that the person has*whether the are related or not* "a $e $rought intothe suit. Once ou have one clai"* ou can add as"an other clai"s as ou want.

). :ou still have to consider whether there is #urisdictionwith each clai".

6. The rule does not re!uire the clai"s to $e $roughttogether? it #ust allows the" to $e.

c. Clai"s $ the 5efendant- Counterclai"si. &ule 16 – Counterclai"s

1. counterclai" is where the defendant $rings a clai"against the plaintiff. This occurs ver often.

a. a/ ; Co"pulsor counterclai" – ou don't haveto raise the clai"* $ut if ou do not raise it then


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ou lose it. %f the counterclai" is co"pulsorthen ou are precluded fro" $ringing a separatelawsuit a$out it. Co"pulsor counterclai"s arethose clai"s that arise out of the sa"etransaction or occurrence of the clai".

$. $/ ; Per"issive counterclai" – an clai" can $e $rought as long as #urisdiction exists. Thisclai" does not have to $e related to the originalsuit.

c. c/ – the da"ages in the counterclai" can $egreater than the original clai"

d. e/ – a counterclai" can $e filed even if it"atured after the initial pleading. :ou cansupple"ent our clai" with changes or newevents that occur after the original filing.

e. f/ – o"itted counterclai". The defendant can

a"end his answer to add a counterclai" if theclai" is not included $ecause of oversight*inadvertence* or excusa$le neglect* or when #ustice re!uires

f. i/ – the #udge can separate cases out in hisdiscretion. %f one of the clai"s is settled thecourt can continue to hear the additional clai"s.=xa"ple- "ain clai" settled* $ut the court canstill hear the counterclai"

ii. Plant v. 8lazer 1. ,acts-

a. P is suing under the federal truth in lendingstatute $ecause so"e ter"s were not disclosed.

$. 5 $rings a counterclai" for the de$t P has not paid on the loan. This is a state clai".

). Procedure-a. P wins the original clai" and loses the

counterclai". P appeals the counterclai"saing that there was no #urisdiction for thecounterclai". The court trial court found #urisdiction $ecause it was a co"pulsorcounterclai". Per"issive counterclai"s wouldre!uire a separate #urisdictional $asis.

6. nalsis-a. The co"pulsor counterclai" would re!uire the

clai" to arise out of the sa"e transaction andthere would $e supple"ental #urisdiction infederal court. This is prior to 16BD.

$. ,our tests the court uses to deter"ine if theclai" arose out of the sa"e transaction-


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i. re the issues of fact and law raised $the clai" and counterclai" largel thesa"eG

ii.


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iii. 5'gostino1. ,acts-

a. 5'gostino $rings a federal clai" against0eward.

$. 0eward $rings a counterclai" against

5'gostino for the federal clai" and a differentstate clai".c. 5'gostino $rings a repl counterclai" for the

state clai" against 0eward.). Procedure-

a. verdict is found for 5'gostino on $othclai"s.

$. 0eward appeals stating that there was no #urisdiction for the state counterclai" eventhough it asserted there was #urisdiction in thefirst case. 0eward argues that the state

counterclai" is per"issive and not co"pulsor.6. 0olding-a. The court holds that the clai" was co"pulsor

and there was supple"ental #urisdiction.4. &ationale-

a. The clai"s arose out of the sa"e transaction $ecause there were "an connections such asone insurance polic for $oth.

@. =xtras-a. The concurring opinion criticizes that this was

not out of the sa"e transaction and $ saingthis is a co"pulsor counterclai" then peoplewould have to $ring the clai" at the ti"e of thecase. This will cause people to $ring "anclai"s at one ti"e $ecause the "ight $eco"pulsor if co"pulsor counterclai"s can $ethis re"ote.

iv. 16BD review Supple"ental Jurisdiction/1. Part – goes to the full extent of the constitution.

The supple"ental case or controvers has to have aco""on nucleus of operative facts. %t has $eenargued that this test is $roader than the clai" arisingout of the sa"e transaction7occurrence.

). Old &egi"e pre 16BD/ – Co"pulsorcounterclai"s have #urisdiction and Per"issive clai"sdo not.

6. New &egi"e 16BD/ – Co"pulsor counterclai"shave #urisdiction and Per"issive counterclai"s "ahave #urisdiction since the co""on nucleus of


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operative facts test is $roader than the sa"etransaction7occurrence test.

4. Overview of Joinder of Clai"sa. %f ou have one clai" one can add as "an as

ou want

$. Counterclai"s – Co"pulsor arise out of thesa"e transaction and Per"issive do not.d. Cross;Clai"s

i. sues 8 and C then 8 sues C. The 8 suing C would $e across;clai". %f 8 $rings in 5 that would $e an i"pleader orthird part clai". %f C sues 8 $ac then that could $e acounterclai" or a separate cross;clai". %f 8 files acounterclai" against then could file a repl counterclai"against 8. %f sues 5* this would #ust $e nown as a clai".

ii. The cross;clai" is a clai" against parties on the sa"e side.Can $e plaintiffs or defendants.

iii. The clai" "ust have arisen out of the sa"e transaction oroccurrence as the original clai". The clai" can $e aninde"nit clai"* $ut does not have to $e.

iv. Once ou are allowed to $ring a clai" against a part in a suitthen ou can $ring an under clai"s under &ule 1.

v. &ule 16g/ – Cross;clai"s1. cross;clai" can $e #oined if it arises out of the sa"e

transaction or occurrence of the original clai" or acounterclai" of the original clai".

vi. ,airview Par =xcavating v. l 9onzo Construction1. ,airview Ohio/ sues 9onzo Pa./* &o$inson Pa./*

and 9d. Cas. 9d./). 9onzo files a cross;clai" against &o$inson and

&o$inson files a counterclai" $ac.6. The clai" $etween ,airview and &o$inson is dropped

$ecause it is not allowed under Pa. law.4. &o$inson now alleges the cross;clai" fro" 9onzo

should not survive $ecause it lacs federal #urisdiction. There is no diversit #urisdiction* nofederal !uestion #urisdiction* and &o$inson clai"sthere should not $e supple"ental #urisdiction $ecausethe original suit including the" as a part wasdropped.

@. The court holds that the clai" can survivesupple"ental #urisdiction $ecause the original clai"was dis"issed $ecause of state law and not #urisdiction. %f the original clai" is dis"issed fornon;#urisdictional grounds then the cross;clai" cansurvive. %f it is dis"issed for #urisdictional reasonsthen the cross;clai" cannot survive.


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B. nalsis under new regi"e of 16BDa. Part / – re!uires the cross;clai" "ust arise

out of a co""on nucleus of operative facts.Since this clai" was legiti"ate under &ule16g/ that re!uires the clai" to arise out of the

sa"e transaction or occurrence. Since it passesthis test* then it passes the 16BD test and can $e ept under supple"ental #urisdiction.

$. 16BDc/ – the court has discretion to dis"iss if all clai"s over which it had original #urisdictionhave $een dis"issed. Since original clai"s stillexist then it cannot $e dis"issed for this reasonand can $e ept under supple"ental #urisdiction.

). Joinder of Partiesa. 8 Plaintiffs

i. &ule )

1. / – Parties "a $e #oined if 1/ the clai"s arise outof the sa"e transaction or occurrence and )/ have a!uestion of law or fact in co""on. The new part iseither #ointl* severall* or alternativel lia$le.

ii. &ule )1- 9is#oinder is not ground for dis"issal.iii. 9osle v. Aeneral 9otors Corp.

1. ,acts-a. The defendant is A9 and there are ten plaintiffs

suing A9 for discri"ination. $. =ach case arises out of separate discri"inator

acts* $ut the plaintiffs argue that the clai"s wererelated $ecause of the Hco""on practiceI ofdiscri"ination.

). Procedure-a. The district court sas the clai"s cannot $e

#oined. The parties want the" to $e #oined $ecause there is a $etter chance of winning thecase and since there are ten acts then it is a "oreattractive case.

$. The appellate court sas the clai"s can $e #oined.

i. The deter"ine it was out of the sa"eseries of transactions and occurrences.The analogize the case to ES v. 9isswhere all the clai"s were allowed for avoting conspirac case although thewere all separate incidents.

6. nalsis-a. &ule )a/ provides that all persons "a #oin in

one action as plaintiffs if the assert an right to


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relief #ointl* severall* or in the alternativerespect of or arising out of the sa"e transaction*occurrence* or series of transactions oroccurrences and if an !uestion of law or factco""on to all there persons will arise in the

actioni. 8oth are "et $. &ule )6 deter"ines the test re!uiring a co""on

!uestion of law and fact is lenient. &ule )6 hasthe sa"e test for class action lawsuits.

i. The co""on !uestion of law and factthe court found-

1. ,act- Aeneral discri"ination polic

). Faw- all Title +%% clai"sc. &ule 4)a/. Court "a order #oint hearing or

trial whenever actions have Hco""on !uestionof law or factId. &ule 4)$/. Court H"a order a separate trial of

an clai"* cross;clai"* counterclai"* or third; part clai"* or of an separate issue* or of annu"$er of clai"s* cross;clai"s* counterclai"s*third;part clai"s* or issues.I

4. %ssue-a. The preli"inar !uestion is whether there is a

co""on practice of discri"ination.i. %n a wa the court has to deter"ine if

there is a co""on practice $efore thetrial to deter"ine if the counts should $e #oined.

@. 0olding-a. The district court a$used its discretion in

severing the #oined actions.i. d#udication of da"ages to various

plaintiffs is not so overwhel"ing as tore!uire severance

ii. Separate trials "a $e granted to particular issues after deter"ination ofco""on !uestions

iv. Price v. CT8* %nc.1. ,acts-

a. Price hired Fatco to $uild a new chicen housefor hi"* lleging the structure was defective*Price sued CT8* which e!uips poultr housesand Fatco as the original defendant in theunderling action regarding the !ualit of the


39/56

wor"anship when it constructed the houses for various la$a"a far"ers.

$. Fatco "oved to file a third;part co"plaintagainst %T


40/56

$. Therefore the court need not address theapplica$ilit of &ule 14 to the other clai"s inFatco's third part co"plaint $ecause its wellesta$lished that a properl i"pleaded clai" "aserve as an anchor for separate and independent

clai"s under &ule 1a/.v. ,airview v. 9onzo1. ,acts-

a. Su$contractor ,airview an Ohio corporation/sued general contractor l 9onzo aPennslvania corporation/* its $oss &o$insontownship a 3citizen3 or Pensnslvania/* and9onzo2s insurer* 9arland Casualt Co. a9arland corporation/ for pa"ent.

$. The diversit allowed the case in federal court.9onzo and 9arland Casualt counter;clai"ed

against ,airview and cross;clai"ed againstTownship. Township counter;clai"ed against9onzo.

c. %n Pennslvania* a "unicipal corporation islia$le to a contractor $ut not a su$contractor* so,airview2s case against 9onzo was dis"issed.

d. 9onzo2s cross;clai" was then dis"issed $ecause of lac of diversit.

). 0eld- Once diversit is esta$lished* a clai" cannot $edis"issed if a part is dis"issed unless that dis"issalis on #urisdictional grounds.

$. 8 5efendants- Third;Part Clai"s %"pleader/i. &ule 14 i"pleader/ Third Part Co"plaint/

1. P sues 51. 51 $rings in 5).). This is o if 51 sas- %f % owe P* 5) owes "e.6. This is not o if 51 sas- 5) owes P and not "e.4. 51 one can $ring the H0i"* not "eI defense* $ut can

not i"plead the person who he thins is actualllia$le.

@. %f 5) is $rought in under &ule 14* then ou can addan unrelated additional clai"s against 5) &ule 1/.These clai"s "ust have #urisdiction* however.

B. 5) can raise additional third part clai"s or cancounter;clai" against 51 or he can cross;clai" if twothird part defendants were $rought in or 5) couldraise a clai" against P or P could raise a clai" against5).

ii.


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1.


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1. Pre#udice to existing parties or toa$sent part

).


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a. %n 0elz$erg's lease there was a provision that+alle


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$. Court found no pre#udice even though +alle


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e. de!uac of &e"ed if Case 5is"issed-i. The could $ring the suit in state court*

so there are other re"edies.6. 0olding- ,or these reasons* the lu"ni ssociation is

indispensa$le* so the case is dis"issed $ecause there

is no wa to #oin the".6. %nterventiona. %ntervention of right &ule )4a// – the part "ust $e allowed into the

suit.i. The intervention "ust $e ti"el* and

ii. 9eet these standards-1. There is an interest related to the propert of

transaction). Practical "atter that would i"pede or i"pair the

part's interest6. The current part does not ade!uatel represent this

part's interest. $. Per"issive %ntervention &ule )4$// – the part can $e #oined at thediscretion of the #udge.

i. The intervention "ust $e ti"el* andii. statute gives a conditional right to intervene* or

iii. There is a !uestion of law or fact in co""onc. N&5C v. N&C

i. %ssues-1. 5irect issue is whether nuclear co"panies can

intervene.). The issue of the suit is whether the delegation of

power to the state exe"pts the federal re!uire"ent ofan environ"ental i"pact state"ent in nuclearlicensing.

ii. ,acts-1. =nviron"ental group sues state to ensure

environ"ental i"pact state"ent re!uire"ent. Onelicensee intervened* and another proposed licenseeand a trade association sought intervention.

a. Enited Nuclear Corporation is allowed tointervene.

$. "erican 9ining Congress M err;9cAeewant to intervene

iii. nalsis-1. ,irst deter"ine if there is an interest-

a. There "ust $e a significant interest in the caseand the interest does not have to $e direct.

$. The court finds that there is an interest in thesuit.


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). Second is whether there is an i"pair"ent of theinterest

a. The are affected $ stare decisis. This would $e i"pair"ent to the" that the could notad#udicate. The other courts are $ound to

follow the decision. $. lso* the agenc would $e $ound* so err;9cAee would indirectl $een $ound.

6. Third is whether the current parties ade!uatelrepresent the other parties interest

a. Enited Nuclear alread has a license and err;9cAee does not* so there "ight $e a differencein interests.

$. The could argue that the rule should not applto co"panies with a license and err;9cAeewill still $e affected. This is wh err;9cAee's

interests are not ade!uatel represented.iv. 0olding- The court holds that the parties are allowed tointervene.

1. One of the reasons the're allowed to intervene is $ecause there is so"e value in having the parties $efore the court so that the will $e $ound $ theresult

). Enwieldiness will not $e a pro$le" $ecause theintervenors are li"ited to this group.

6. lso* representation would $e inade!uate* given thatan existing licensee "ight have different interestsfro" a proposed licensee

d. 9artin v.


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6. The court is divided on this issue and the dissentthins the issue is decided and allowing this tpe ofsuit would allow a large a"ount of litigation./

4. %nterpleader a. Statutor %nterpleader? 166@

i. %nterpleader is needed where "ore than one person has a clai"to the sa"e propert. ll the suits "ust $e #oined together* sothe plaintiff who has the propert does not receive inconsistento$ligations. %f $oth people win* then the $oth have validclai"s to the propert then the person "ight have to pa $oth people even though there is onl one set of da"ages.

ii. New :or Fife %nsurance Polic v. 5unlev1. ,acts-

a. The life insurance polic pas out a lu"p su"after a certain a"ount of ti"e. The $eneficiaris the daughter.

$. 8oth dad and daughter have clai"s anddaughter has "an creditors that are interestedin the "one.

c. The insurer $rings an interpleader case against5ad* 5aughter and Creditors.

d. 5ad wins.e. The daughter is upset and clai"s there was no

personal #urisdiction in the case* so she files suitin C. She wins and the insurance co"panhas to pa twice.

). The Supre"e Court sas this is o $ecause there wasno #urisdiction over her in the original suit* so she isnot $ound $ it.

iii. 166@a/1. Su$#ect 9atter Jurisdiction changes

a. Aeneral7"ini"al diversit as opposed toco"plete/ – onl two or "ore clai"ants "ust $ediverse.

$. The #urisdictional "ini"u" is onl @ or"ore.

). The insurer "ust deposit the "one with the court atthe ti"e of $ringing the interpleader action.

iv. 166@$/1. The clai"s can $e independent. The do not have to

$e a$out the sa"e transaction.). The clai"s "ust $e adverse. Onl one person can

collect the "one. The clai"s have to $e adverse toeach other. The clai"s "ust $e "utuall exclusive.

v. )6B1


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1. uthorizes national service of process in interpleadercases

). =as to get personal #urisdiction over everone.vi. 16QD

1. The venue is proper in an district where an

clai"ant resides.vii. Scope?1. State ,ar" ,ire M Casualt Co. v. Tashire

a. ,acts-i. Arehound $us collided with a picup

truc* illing two passengers on the $usand in#uring 61* including the $us driver*the truc driver* and the truc2s passenger. One of the dead and 1 passengers were Canadians* the rest"ericans.

ii. ,our in#ured passengers suedArehound* a California corporation?Thereon Nauta* the $us driver? =llisClar* the truc driver? and ennethAlasgow* the truc passenger who wasalso the owner of the truc.

iii. State far" clai"ed it had a polic on=llis Clar that provided a "axi"u" of)* and provided hi" legal defense* paid the )* to the court* 1/ asedthe court to re!uire all other clai"ants tosettle their clai"s against Clar in asingle proceeding* and )/ ased the courtto discharge State ,ar" fro" an further lia$ilit* including representing Clarfurther.

iv. lternativel* State ,ar" wanted thecourt to deter"ine that the polic didn2tappl to defendants operating other people2s trucs and refund State ,ar"the "one./

v. Arehound wanted this charge expandedto relieve Arehound fro" lia$ilit.

$. 0eld ,ortas- State ,ar" correctl filedinterpleader under ) E.S.C.. 166@* and doesnot have to wait for reduction of Clar2s clai"sto #udg"ent.

c. 0eld State ,ar" and Arehound "a notexpand the interpleader to appl to other passengers* $ecause this would force the other


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plaintiffs to change their venue #ust $ecause oneof the defendants happened to have insurance.

$. &ule %nterpleader? &ule ))i. 9ore li"ited than statutor interpleader.

ii. Onl "eans for #oinder* not #urisdiction.

iii. Statutor interpleader changes #urisdictional re!uire"ents* $ut&ule %nterpleader onl deals with #oinder. :ou need a separate #urisdictional ground in rule interpleader.

c. %nterpleader and %ntervention?i. Cohen v. The &epu$lic of Philippines

1. ,acts-a. Cohen had paintings on consign"ent and was

not sure who to give the" $ac to* so he $ringsan interpleader action.

$. 0e $rings it against 8rae"er and the Phillipines.c. 8rae"er was the agent of 9arcos who gave the

paintings to Cohen. 0e clai"s he is owed the paintings $ecause 9arcos owed hi" a loan andsaid he could sell the paintings to get it. ThePhilippines clai" that the own the paintings $ecause 9arcos $ought the" with "one stolenfro" the Philippine govern"ent.

d. 9arcos wants to intervene under &ule )4 $ecause she clai"s the paintings are hers. Sheis not interpleaded initiall.

i. The court allows her #oin the suit $ecause her interest would $e pre#udiced $ not $eing included in the suit.

ii. 0er intervention is ti"el1. dela to intervene was not

unreasona$le given the politicalcircu"stances of this case

). existing parties aren't undul pre#udiced $ the dela $ecausethe scheduled trial date does nothave to $e altered

iii. She has interest in the paintings that aresu$#ect of the suit

iv. The existing parties are unliel toade!uatel protect 9arco's interest.

1. her interest are contrar to theinterests of the existing partiesand therefore her interest is notrepresented or protected

e. People are allowed to intervene in aninterpleader case if the have interest in the


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dispute and satisf the re!uire"ents forintervening.

). 9arco is allowed to intervene $ecause she fulfills allthe re!uire"ents of &ule )4a/)/.

d. %ndependent Clai"s? Town$ridge

i. %ndependent clai"s cannot $e interplead.@. Class ctionsa. &ationale for a class action.

i. 9an s"all clai"s can $e $rought together* so the havehigher $argaining power. Not econo"ic to $ring a single s"allclai"* $ut can $ring "an s"all clai"s.

$. Changes the focus fro" the clients to the attornes. The attorne hasthe "ost incentive to $ring a class action $ecause of the high attornefees.

c. 9an large clai"s are $rought together for #udicial efficienc andallow a defendant to litigate "an clai"s in one case. lso* if the

clai"s are large the co"pan can $eco"e $anrupt* so people that filelate cannot recover.d. 5angers to individual plaintiffs.

i. So"eti"es there are conflicts of interests and can li"itrecover.

e. Esuall tal a$out plaintiff class actions* $ut defendant class actionscan also occur. 5o not see this that "uch* $ut it can occur in theor.:ou can sue lots of people or lot of people can sue a s"all nu"$er of people.

f. &ule )6a/ &e!uire"ents – 9EST "eet FF of these-i. Nu"erosit – large nu"$er of people* so #oinder would $e

i"practical. %"practical to litigate a case with* so "an people. No nu"$er is specified. One treatise sas 4 should $e the nu"$er* $ut "ost classes have "ore people.

ii. Co""onalit – plaintiffs share characteristics that "atter inter"s of the su$stantive law involved. There "ust $e so"esu$stantial co""on !uestion of law and7or fact.

iii. Tpicalit – the representative of the class "ost $e tpical ofthe people in the class. Si"ilar in#uries7$asic cause.

iv. de!uac of &epresentation – the representatives and lawer"ust $e ade!uate to represent the interests of the class.

a. &ule )6$/ &e!uire"ents – 9EST "eet ON= of these-i. )6$/1// – prosecution of separate actions would ris

inconsistent ad#udications to various class "e"$ers. Thedefendant could $e forced to have inconsistent o$ligations.

ii. )6$/1/8/ – prosecution of separate actions would risad#udications of prior clai"s would i"pair or i"pede other"e"$ers a$ilit to recover.


51/56

1. HFi"ited fundI rule. %f there is a li"ited fund then a classaction is necessar $ecause the plaintiffs who file first willget "one that will run out $efore others get to file.

iii. )6$/)/ – when the class is seeing in#unction or declaratorrelief. :ou need a class action $ecause there are concerns a$out

"ootness in#unction runs out of ti"e/ and it is needed to appl toeverone in a group. %f it was li"ited the in#unction could appl toso"e people and not others and this would create a pro$le".

iv. )6$/6/ – ou can get "one da"ages. This rule has extrare!uire"ents $ecause the drafters were concerned $ecause it would $e difficult to deter"ine how "uch each person receives.

1. Predo"ination – the co""on !uestion of law and fact "ust predo"inate over an !uestions affecting an individual"e"$ers.

). Superiorit – a class action is superior to other for"s ofad#udication. ,our re!uire"ents-

a. %nterest of class "e"$ers in individual prosecution $. =xtent of litigation alread co""encedc. 5esira$ilit of concentration in a particular foru".

The focus is on the foru". Concerns related tovenue.

d. 5ifficulties in "anaging the class action. $. &ule )6c/ – Procedure

i. 1/ – whether the class should $e "aintained should $e decided assoon as practica$le

ii. )/ – applies to )6$/6/. &e!uires the $est notice practica$legiven the circu"stances. 9ust give all of the plaintiffs a right toopt out.

iii. 4/ – su$classc. Co""unities for =!uit v. 9ichigan 0igh School thletic ssn.

i. 0igh school wo"en athletes are suing for an in#unction fordiscri"ination that the are treated worse than "ale sports.

ii. There were different !uestions* $ut the were close enough to "eetco""onalit and tpicalit. Nu"erosit and de!uac ofrepresentation "et.

iii. 0olding- The class action is allowed to proceed.1. ,inds co""onalit* despite different range of different

clai"s? parallel with &ule ).d. 0eaven v. Trust Co"pan 8an

i. 0olding- 5istrict court's denial of class certification was not ana$use of discretion. 5ecision affir"ed.

ii. &ationale-1.


52/56

). 5id not "eet )6$/6/ $ecause Sun Trust counterclai"ed*which would re!uire the counterclai" defendants to co"eforward with individual defenses.

a. This would re!uire the court to "ae "ultipleseparate factual deter"inations.

$. lso found that the interests of so"e individualclass "e"$ers in controlling their own case would $e co"pro"ised.

e. 5alon Shieldi. The lower court certified two classes* $ut $oth were decertified on

appeal.ii. Nationwide class for punitive da"ages onl

1. Prere!uisites other than nu"erosit pro$le"aticindividuall and together Hpreclude certificationI

). &ule )6$/1/8/ Hli"ited fundI theor also re#ected* $ecause it is not Hinescapa$leI that there will $e inade!uate

fundsiii. California class1. Class actions are generall disfavored in "ass accident

cases.). Predo"inance is not "et* $ecause "ore !uestions var

a"ong class "e"$ers.6. Class action would not $e superior to individual litigation

followed $ settle"ent.f. dvanced Class ctions

i. Phillips Petroleu" v. Shutts1. Phillips charged custo"ers a higher price i""ediatel* $ut

onl paid roalties on the lower price until the high pricewas approved.

). The plaintiffs of class are fro" all @ states and propertowned is in 11 states.

6. This presents personal #urisdiction and choice of law!uestions.

4. The defendant is clai"ing there is no personal #urisdictionover the plaintiff. Esuall it is the defendant that $rings achallenge to personal #urisdiction.

@. %nternational Shoe does not appl in this case $ecause thea$sent plaintiff class "e"$ers do not have to do anthingto $e part of the class. 5efendants have the $urdens.

B. lthough the personal #urisdiction re!uire"ents of priorcases do not appl* the court holds that the a$sent plaintiffsre!uire so"e "ini"al protection of due process* however.

D. There is a re!uire"ent of notice and constitutionall theare re!uired to give the person the choice to opt in. Thecourt does not re!uire people to opt in* $ut given the option


53/56

to opt out. Not opting out is enough for consent to personal #urisdiction.

. Choice of law issue. The court holds that the choice of law"ust $e deter"ined appropriatel. The Supre"e Courtdoes not decide on the choice of law* $ut sas that ou

cannot #ust assu"e ansas law applies to everone. Theansas court "ust go $ac and deter"ine the choice of lawthat applies in each case. Cannot sa ansas lawauto"aticall applies.

ii. =isen v. Carlisle M Jac!uelin1. =isen is suing for D for anti;trust violations in odd;lot

trading. S"all "one at stae.). Notice

a. 5istrict Court-i. The district court said notice would $e given

to the $ans* )* plaintiffs with 1 odd;lot

transactions* @* other rando" peoplewith odd;lot transaction* and the rest would $e notified $ pu$lication.

ii. The district court has a preli"inar hearingto decide the pro$a$ilit that the case will $ewon on the "erits. Since the deter"inethere is a QW chance of winning* then thedefendants have to $ear QW of the cost forthe notice.

$. Supre"e Court-i. The Supre"e Court sas the notice sche"e

is not appropriate and the plaintiff has to provide notice.

ii. The pu$lication notice is not enough $ecause it does not fall under 9ullane'sre!uire"ent of notice reasona$l calculatedto everone identified.

iii. 5eciding the "erits of the case was pre#udicial* as well. The defendant shouldnot $ear the cost of notice. &ule )6 does notallow the defendant to pa for notice and the plaintiff is re!uired to pa under &ule )6.

6. ,luid &ecovera. 5a"ages are distri$uted to future odd;lot traders

$ecause it would $e too difficult to deter"ine whoand how "uch each person in the class wouldreceive.

$.


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c.


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operative facts

Cross;Clai" 16g/ Sa"e transaction oroccurrence of an originalclai" P v. 5 or 5 v. P/

lwas has supple"ental #urisdiction

%"pleader 14 5 v. 6rd

part/

5erivative

lia$ilit7%nde"nification

lwas has supple"ental

#urisdiction; 6rd part v. P Sa"e transaction or

occurrence as P v. 5lwas has supple"ental #urisdiction

; P v. 6rd part Sa"e transaction oroccurrence as P v. 5

No supple"ental #urisdiction. 16BD$/

dditional clai" once wehave #urisdiction over one1

n clai" can $e $rought Co""on nucleus ofoperative facts

dditional parties on oneside )

Sa"e transaction oroccurrence L co""on!uestion of law or fact

No* if 5 16BD$/

Necessar 1Q %nterest related to the action Co""on nucleus ofoperative facts* No not if Pv. 5 16BD

%ntervenor – &ight )4 %nterest related to the action Co""on nucleus ofoperative facts* No not if Pv. 5 16BD

%ntervenor – Per"issive )4 Co""on !uestion of law or fact

Co""on nucleus ofoperative facts* No not if Pv. 5 16BD

NEW JOINE! C"#!$

%#ssuming no

Ind& Juris&'

Main claim is

iversit()

!ule Categor( $est Supp& Juris*

Rule 13(a) Compulsorycounterclaim

Transaction/occurrence (of opposing

party’s claim)

Yes

Rule 13(b) Permissivecounterclaim

Anyting Commonnucleus

Rule 13(g) Cross!claim Transaction/occurrence (of P v" # or #v" P)

Yes


56/56

Rule 1$ %mplea&er #erivative liability Yes

Rule 1$ 3& party # v" P Transaction/occurrence (of P v" #)

Yes

'Rule 1$ P v" 3& Party # Transaction/occurrence (of P v" #)

o

Rule 1 A&&’l claim onceA as one v"*

Any Commonucleus

'Rule +, A&&’l # Transaction/occurrence - common.uestion of la

an& fact

o

Rule +, A&&’l P Transaction/occurrence - common.uestion of laan& fact

o (unlessproblemis onlyamountincontroversy)

'Rule 10 ecessary party %nterest relate& tosubect of action

Commonnucleus2no if #

'Rule +$ %ntervenor %nterest relate& toproperty ortransaction

o if #

'Rule +$Continue&

%ntervenor

4uestion of la orfact

Commonnucleus/o if #

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