Civil Procedure II Outline

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CIV PRO

FINAL OPEN NOTE

Intro: Precedent- federal District courts do not need to follow each other, because they are parallel.

When a U.S. District Court has a state law issue, it looks at how the state would rule

Article III gave a compromise for congress to create lower courts.

Steps in dispute resolution process1. who, what, where2. initiate suit3. response to action- no remedy from law4. discovery-what are real facts5. trial- only if necessary6. possible motions- new trial, etc.

Federal and state courts:1. state courts- have general jx, meaning court could hear everything2. federal courts- limited jx. Limited by Constitution and congress

a. they place a limit on state courts (patent, copyright, etc.)

Subject Matter Jurisdiction (SMJ): Federal Courts power to decide the type of case before it—can only proceed with “Constitutional authority” (Article 3 Section 2) and “Con-gressional approval” (§ 1331 § 1332)

2 types of SMJ:• Federal Question §1331• Diversity with amount in controversy §1332

Federal Question Jurisdiction (FQJ): 28 USC §1331• FQJ is when the cause of action arising under federal law aka “CONSTITUTION, LAWS OR

TREATIES OF THE US” (whether P is relying on or contesting)—amount in controversy does not matter for FQJ

• It can’t be conferred by parties by consent• some examples of FQJ:

• arises under federal statute• [Mottely]—“well-pleaded complaint rule”—complaint evaluated for FQJ by

looking only at P’s cause of action—this does not include anticipated de-fenses of federal statutory origin which MAY be used by D

• federal claim must be substantial, not frivolous or lacking on the merits• § 2201 permits declaratory judgments ONLY when suits that would arise in

the absence of declaratory judgment COULD be brought in federal court• No amount of controversy necessary.

Exclusive Jx: • admiralty• bankruptcy• certain antitrust cases• patents & trademarks, copyright inter-state commerce [white slave trade case]• where US is a party• controversies between states• controversies between US citizens and foreigners

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Diversity Jurisdiction: §1332 Cases between citizens of different states or between citizens of a state and citizens or subjects of a foreign state AND amount in controversy exceeds federal statutory limit of $75k

1. complete diversity between partiesa. complete diversity is needed between ALL Δ and all π. (Note: π may

live in the same state as other π and defendants may live in the same state as other Δ.

b. Corporate diversity- citizen of a 1. state of incorporation2. state which it maintains its principal place of business.

c. third party interpleader- it may destroy smj if it destroys diversity2. amount of controversy>$75,000.00

When suits are between:1. citizens of different states2. citizens of a state against citizens of foreign states or countries3. citizens of different states, with additional parties from different states or

countries4. citizens of one state (or different states) against citizens of a foreign state

acting as a π

• Diversity of Citizenship:• A individual is a citizen of the state ONLY if he or she is both:

• A citizen of the US (born or naturalized) or a permanent alienAND

• Domiciled in that state

• DOMICILE : one is domiciled in the state of their birth (or of previous domicile) until they establish “residency plus intent to stay for an indefinite period” in an-other state: (burden of proof is on P)

• Residence- must have a fixed and permanent home in the state.

• Intent- factors: employment, residence, voting or auto registration, etc.

• Domicile is determined at the time of filing the suit (Saadeh v. Farouki)• Mas v. Perry: intent not to leave. Intention of permanent residence

A student attending college in LA who has left her parent’s home in MS is still domiciled in MS until she sets up a physical residence in another state with the intent to remain there indefinitely.

• Gordon v. Steele: intent to remain indefinitely• Note: US citizens living abroad for an indefinite period is not a citizen of

any state and thus can not use diversity jurisdiction• Domicile for Corporations—can have multiple domiciles (you can never have

diversity jx against Teamsters b/c they Inc. in every state)• State of incorporation

AND• Location of Principle Place of Business (PPB)—a corporation can

only have one PPB• Nerve center—location of corporate headquarters

OR• Muscle Center—where corp. transacts most of their business

OR

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• Hybrid of both• Corporations chartered in foreign companies

Majority position- a corporation is deemed exclusively a citizen of a foreign country of incorporation so it is an alien for diversity purposeMinority position- PPB

Domicile for Partnerships and unincorporated companies: citizens of where part-ners are located. They are considered individuals.• Class Actions: named representative of class it the P whose residence is

considered for diversity purposes

Domicile for Aliens: §1332 (c)(4): aliens are citizens of the state where they are domiciled as per §1332 (a), if they reside with the intention of becoming a permanent resident.

• Complete Diversity Rule: [Strawbridge] No one P can be a citizen of the same state as any one D

• NOTES:• Diversity for estates, infants, and whackos is determined by the represented• Diversity for class actions is determined by the representative• Divorces must be brought in state court according to tradition.

§1359-deprives the federal court of Jx where a party “by assignment or otherwise, has been improperly or collusively made or joined to invoke Jx.

• Amount in Controversy (AIC): as specified in § 1332(a)—must be more than $75K• AIC must be valued with good faith and is determined at the outset of the case

(if you get less later it’s ok but you may have to pay court costs)—punitives are included in AIC calculation in states that allow it under substantive law.

• Rules on Aggregation:1. 1 P may aggregate as many claims as he or she has against 1 D,

whether claims are related or unrelated2. 1 P against several Δ- a π who has an axn against several defendants

may aggregate her claims against them only if the defendants are jointly liable to the plaintiff. She cannot aggregate claims based on separate li-abilities.

3. Claims by multiple P’s or against multiple D’s can not be aggregated un-less there is a common undivided interest in the subject matter of the ac-tion (such as joint ownership of property or partnership). Claims cannot be separate and distinct.

4. If one party’s claim meets the jurisdictional amount but the other party’s claims do not then the traditional rule is that the claims can not be aggre-gated [Zahn—class actions] However, some courts have held that Zahn has been overruled by the enactment of § 1367 (supplemental jurisdic-tion)

5. counterclaims a. compulsory- arising out of same transaction, court has ancillary jx,

does not need to meet AIC requirmentb. permissive- arising out of an unrelated transaction, must meet AIC

• Valuation of Injunctive Relief:• Generally determined as value to P—not as cost to D

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• Some courts will consider the greater of the two

CHALLENGES TO SMJ:• Direct attacks:

• Direct attacks are ones that take place during the lawsuit including appeal• Can be raised anytime in the trial

• Collateral attacks:• Attacks which take place in a second suit in which SMJ of first court is questioned

• Collateral attack is only justified in special circumstances:• When D appears and challenges SMJ and losses• When D appears and fails to challenge SMJ and loses on the merits• When D defaults

• Courts can raise issue of lack of SMJ sua sponte

Full Faith and Credit (FFC) can be challenged ONLY if due process was violated(due process includes SMJ)

3 elements of Due Process required to extend FFC:• SMJ• PJ• Notice and opportunity to be heard

SUPPLEMENTAL JURISDICTION:Authorized by § 1367

ANCILLARY JURISDICTION (additional parties to a claim) + PENDENT JURISDICTION (state claims added to fed-eral claims) =SUPPLEMENTAL JURISDICTION

• Except as otherwise provided, if there is federal SMJ over one claim then there is supplemen-tal jurisdiction over all other claims which are “so related to claims in the action within such original jx that form part of the same case or controversy under Article III.

• Gibbs’ Test: supplemental jurisdiction claims must “derive from a common nucleus of op-erative facts”—codified under § 1367(a)—i.e. same transaction, occurrence or event

On test: Here are the common facts that constitute each claim. Work with the facts.“Miners standing in front of coal is the federal law. Same facts bring up the state claim.

Limitations on Supplemental Jurisdiction: as proscribed in § 1367(b)• Where SMJ is based solely on § 1332 (diversity jurisdiction) then the following claims involv-

ing additional parties are excluded unless EACH claim individually satisfies diversity of citi-zenship and amount in controversy:

• Exceptions:• Claims by P’s against persons (additional D’s) made parties (joined) under:

• FRCP 14 (impleader) • FRCP 19 (mandatory joinder) • FRCP 20 (permissive joinder)• FRCP 24 (intervention)

• Claims by persons proposed to be joined as P’s under rule 19 (mandatory joinder) or rule 24 (intervention)

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• Comment: §1367(b) does not appear to cover claims by P’s joinder under rule 20 against a single D. Stromberg holds that supplemental jurisdiction may be exercised over such claims.• The effect of this holding (Stromberg) is that if there is one P who satis-

fies § 1332 then claims by other P’s who are joined under rule 20 do not have to individually meet complete diversity or amount in controversy.

• Comment: § 1367(b) does not appear to cover claims by P’s joined under rule 23 (class actions) against a single D. Abbott holds that supplemental ju-risdiction may be exercised over class action claims.

• Comment:• The legislative history indicates that Congress did not intend to overrule Zahn:

• Both Stromberg (10th Dist) and Abbott hold that where the unambiguous text of a statute conflicts with the legislative history, the text controls

• But Meritcare (3rd Dist) and Leonhardt (and a majority of district courts that have addressed the issue) have followed the legislative history in holding that § 1367(b) did not over rule Zahn which said no supplemental jurisdiction for class actions.

• Thus, there is a split of authority regarding class actions • 1367(b) did not overrule Zahn• 1367(b) did overrule Zahn

SO:• 1367(a) grants supplemental jurisdiction under “common nucleus of operative facts”• 1367(b) limits supplemental jurisdiction for cases based solely on § 1332-diversity

THEREFORE:Courts will not have supplemental jurisdiction under claims where :P tries to add: (P / D)

under: 19 1424 19

2024

note: § 1367(b)--says nothing about D adding P’s or D adding D

Discretion regarding Supplemental Jurisdiction§ 1367(c) gives Courts power to decline to exercise supplemental jurisdiction when:• claims raise novel or complex issue• state-claim substantially predominates over claims over which there is federal jurisdictions

a. Will not get supp jx if there is a minor federal claim.• Claim over which there is federal jurisdiction is dismissed (especially if dismissed before trial).

The less time and costs spent, the more likely it will be dismissed.• Other exceptional circumstances raise a compelling reason for declining jurisdiction

NOTE:• If a supplemental claim is dismissed, the statute of limitation for all claims dismissed at the

same time is tolled until 30 days after dismissal, unless state law provides a longer tolling pe-riod.

ADDRESSING SUPPLEMENTAL JURISDICTION ON AN EXAM

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Is there a federal suit going on already:Trying to add parties or issues to a case that already has federal SMJ: 1st try to find independent SMJ for each new party or issue—is it granted under:§ 1331—FQ Jx § 1332—Diversity Jx

NO regular SMJ—then go on

§ 1367 (a)—look for supplemental jx granted• “forms part same case or controversy”—statutory language

• Defined by “common nucleus of operative fact”• Defined by “same transaction or occurrence”

§ 1367 (b)—look to see if supplemental jx is taken away• Only applies to § 1332 (diversity jx)

• D can add whoever he wants • § 1367(b)--only kills supplemental jx over claims to be added by P

P tries to add: (P / D)under: 19 14

24 192024

• P can not add P’s under 19, 24 • P can not add D’s under 14, 19, 20, 24

REMOVAL • If a case brought in state court could have been originally brought in federal district court,

then D may remove the case (authorized by § 1441—procedure for removal § 1446)

• Removal always requires two statutes—§ 1441 and some basis for federal jurisdiction (such as §1331 or §1332)

• Removal only deal with moving from state court to federal court• Authorized by § 1441—ACTIONS REMOVABLE GENERALLY

• With original jurisdictions to federal courts via:• § 1331• § 1332

• Removal is allowed (b) when: a federal question may be removed w/out regard to the residence of the parties.--

• Except:• As long as any defendant is not a citizen of the forum state for diversity

cases. §1441 (c): When an independent federal question is joined with a non-federal

subject matter, the court may choose to either:1) split the matters and hear only the federal element2) hear the entire case3) remand matters where state law predominates.

§1441 (d): Foreign state Δ-When a π sues a foreign state, the case may be removed by the foreign state

GENERAL NOTES ON REMOVAL:

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• Removal to federal court would be to the Federal District Court “embracing the place where the state action is pending”

• P can not remove from state court in which he filed on the basis of counterclaims filed by D which would have granted original jurisdiction to the federal courts

• If a diversity case has more than 1 defendant, all Δ’s must remove case together.

Additional Deal on Removal:• If removal has already taken place:

• § 1441(e)—if a state court originally did not have jurisdiction but the claim was prop-erly removed—Federal court to which it was removed may still here the claim

• § 1441(e)—is an alternative to having the cases dismissed and re-filed in federal court

Removal for diversity cases is one year before filing.

Caterpillar, Inc. v. Lewis: There was diversity before judgment was issued. To wipe out the adjudication Post judgment an dre turn to state court a case now satisfying all federal jx Requirements would impose an exorbitant cost on our dual court system.

HOW TO APPROACH REMOVAL ON EXAM:• P files suits against D in state court• P’s state court claim could have originally been filed in federal court under § 1331 or § 1332• If federal SMJ is based on § 1331 then D can always remove• If federal SMJ is based on § 1332 then § 1441(b) says D can not remove if D is citizen of the

state in which the claim is brought (home state D can not remove)

The Securities Litigation Uniform Standards Act of 19981) preempt state securities class actions alleging fraud in the sales of securities, it pro-

vides in other words, in such cases federal law displaces applicable state law. 2) security fraud action based entirely on state law shall be removeable to the federal district court for the district in which it is pending, 3) it orders dismissal of the removed class actions.

a) statute does two things: creates a federal defense to certain state law claims, and then creates removal on that defense

§ 1446—Procedure for Removal:• § 1446(a)—D who wants to remove shall file in District Court

• signed motion pursuant rule 11• short & plain statement of the grounds for removal• copies of all papers served on D

• § 1446(b)• notice of removal shall be filed within 30 days of D receipt of service

§1446(c)promptly after filing, the Δ shall give a written notice to all parties and shall file a copy with the clerk. Once the state court is notified, the state court automatically loses control.

§1447(c) motion to remand (for a defect in removal procedure)

1. a motion to remand may be made by π2. the motion must be made within 30 days of the §1446 filing of the notice3. if district court lacks subject matter jx at any time it may be remanded to state

court4. orders remanding a case back to the state may require payment of expenses

associated with removal

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5. state court shall proceed with the case once the district court clerk mials a certified copy of the order of remand

(d) a order to remand is not appealable(3) if after removal, the π joins other Δ that destroy subject matter jx (i.e. no more com-plete diversity), the court may:

1. deny the joinder2. remand the case to state court

PERSONAL JURISDICTION• Power to bring a party before a court and bind them to the judgment

3 types of PJ:• in personam : power which the court has over D himself

• Shaffer made the standards for in personam and quasi-in rem the same• in rem: jurisdiction to determine ownership of property—claim is limited to ownership of the

property itself—serves as constructive notice• quasi in rem: jurisdiction over an out of state D by seizing property at the outset of a trial--ju-

risdiction is based on the presence of the property within jurisdiction—use of property as a pretext to exercise over the D--had the court been able to obtain in personam—the action would be taken against the person and not the property--(dispute is limited to the value of the property--serves as constructive notice

Pennoyer v. Neff:In personam jx can’t exist against non residents not served in the state. No publication In personam. Service for in Personam (1st case) is ineffective.

Every state possesses exclusive jx and sovereignty over persons and property within its Territory; therefore, the courts of that state may enter a binding judgment against a non- resident only if he is personally served with process while within the state, if that propertyIs attached before litigation begins.

a. to allow publication for in personam would be the constant instru-ments of fraud and oppression

b. Publication ok for the seizure of property c. personal jx could be rendered by voluntary appearance

PJ is about power. In order for the court to have power, it must bring the property in front of court. This is a process called attachment. If it was attached it would have been in rem, which would have made it sufficient to have service by pubication.

In regards to personal jx, notice and power become the same. In the act of acquiring power, you are giving notice.

Tells us state constitutional powers: every State possesses exclusive jx and sovereigntyover persons within its territory.

Challenging Jx:1. don’t show up, b/c you don’t recognize authority2. attack judgment with another claim, b/c there is no personal Jx.3. show up to court and make a motion. Dismiss on lack of jx. Rule 12 (b)

Also special appearance, a fiction that allows you to show up and only contest Jx.

Examining PJ:• Is there a long arm statute (thus statutory authority)• Is there traditional basis of PJ—(presence, domicile, consent, agency)

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1) Presence- Pennoyer v. Neff (see above) Burnham v. Superior Court of Ca- Territoriality rule. In the state receiving

the benefits. You can’t be induced to that state for service by fraud.2) Consent- may make a special interference to object jx issues. A general appearance gives consent because Δ defends himself on the merits of the action

1) express consent- express provision in a K (Carnival Cruise Lines)• Is the exercise of personal jurisdiction constitutional under Due Process Clause of the 14th

Amendment?• PJ is established and limited by the Due process clause of the 14th Amendment [Pen-

noyer]• If the D is not present in forum state, he must have minimum contacts with the fo-

rum such that the exercise of PJ will not offend traditional notions of fairplay and substantial justice [International Shoe] (Rule)

a. Changes the rule in Pennoyer that presence within the territorial jx of a court was a prerequisite to personally binding somebodya. contacts will be determined by those who are authorized to act for it.b. stressed that contacts must be systematic and continuous.

• 2 factors for minimum contacts:• purposeful availment- Has Δ purposely availed himself to the benefits

and protections of the state?1) assess whether the acts are purposeful or deliberate acts of the de-

fendant directed at the forum state, thus invoking the benefits.

Hanson v. Denckla: court has no business applying the law to a transaction that took place before deceased moved into FL. Thus, Court looked at facts. Δ had no office in FL, no business there. The relationship between the Δ and state is a “unilateral activity.”

Worldwide VW: mere forseeability that the vehicle may one day reach OK is not going to get you personal Jx. This not purposeful availment. Thus, Δ does not expect to be haled into court.Also, in WWV, the court approved of Jx over two other Δ, b/c they in-tended to serve the U.S. market.

Asahi Metal Industry: Justice O’conner says that placing the prod-uct into the stream of commerce is not enough to purposely avail yourself. Must serve the market by advertisement, designing the product for that market, sales agents in that market

Justice Brennan: injecting goods into the stream of commerce should suffice for Jx.

Justice Stevens: Also determine by the quantity. 2) Assess the frequency and regularity of Δ’s purposeful contacts

Were they systematic and continuous?If so, Δ should have reasonably expected to be haled into court there

3) assess the “nature and quality” of Δ’s contacts with the forum state.Important where frequency of the contacts are “isolated or occa-sional”

Int’l Shoe- does the Δ enjoy the benefits and protections of the laws of that state by conducting his activities there?

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McGee v. Int ’ l Life Insur. - This case involved a single contract, but it was strong since insurance industry is heavily regulated to public.

4) assess the reltationship between π’s cause of action and Δ’s contacts with the forum state (NEXUS TEST)

• fair and substantial justice

5 factors for fairplay and substantial justice from [WWV]--fairplay and substantial justice hinge on REASONABLENESS--

• burden on D of litigating in forumcould violate Δ’s due process rights to require him to defend in the forum state.Asahi: Δ’s from a different country

• forum state’s interest (protecting it’s citizens)regulating insurance business or activity on highwaysi.e. if the explosion in WWV had injured an OK resident, it would have been in the state’s interest to litigate.

• P interest in effective relief• Efficient resolution of controversy (between states)• Shared interest of states (substantive social policy)

States want to avoid multiple lawsuits and conflicting adjudica-tions

--In Burger King: Once it has been decided that a Δ purposefully established minimum contacts within the forum State, these contacts may be considered in light of fair play and substantial justice (Int’l Shoe). A strong showing of fair and substantial justice requires a lesser showing of minimum contacts (Justice Brennan).

1)No Jx if when terms for a K have been obtained through fraud, undue influence, or overweening bargaining power” and application would render litigation so “gravely difficult and convenient that a party will be deprived of its day in court.

2)Steven’s dissent: no contacts. Did not make french fries in FL. Also took a look at the inconvenience.

Traditional notions of fairplay and substantial justice are NOT offended if:• satisfy specific jurisdiction (case arises out of D’s contacts with the forum state,

contacts can be casual and isolated)OR

• satisfy general jurisdiction (case does not arise out of contacts BUT D’s contacts with the forum state are continuous and systematic)

Relation of contacts to the claim:Systematic & Continuous

ContactsCasual & Isolated Con-

tacts

Is there something like“related to contacts”

somewhere in the middle here

Case arises out of D’s contacts with the “forum

state”Yes

Maybe

(specific jurisdiction)

Cases does not arise out of D’s contacts with the

“forum state”

Maybe

(general jurisdiction)No

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• Part of minimum contacts / fairplay analysis: Did D purposefully avail himself of the privilege of conducting business in the forum state thus evoking the benefits and pro-tections of its law—(volitional, cognitive, beneficial contacts)--must not be uni-lateral act of a 3rd party [Hanson v. Denckla ]

Asahi split on purposeful availment:• [Brennan from Asahi]—

• 1 factor for purposeful availment: • Reasonable Anticipation about stream of commerce can be

called purposeful availment• [O’Connor from Asahi]—

• Reasonable anticipation + any of 4 factors for purposeful availment:• Designing product for forum state• Advertising in forum state• Customer Service in the forum state• Control of the chain of distribution in forum state(distributors)

• Does the D reasonably apprehend that they could be hauled before the courts of the forum, mere foreseeability is not enough, there must be a reasonable apprehen-sion that this conduct may haul me before the courts of that forum [WWV]

• When placing a product into the stream of commerce those activities must be purposefully directed toward forum state [Asahi]

Internet: there will be PJ when Δ tries to market directly to the state. Must distinguish between informational websites and control over people

GENERAL Jx: when contacts are unrelated to the claim. 1) may sue where a party is domiciled2) Washington Equipment : General Jx is unrelated to the corporation’s spe-

cific activities in the state. General Jx focuses on whether the foreign corpo-ration’s general business activities are substantial and continuous. Foreign corp does not consent to general personal jx by complying to state’s manda-tory requirements for doing business there.

3) Burnham: (transient jx) Jx based on physical presence comports with due process, regardless of the Δ’s contacts with the forum state. Justified by Brennan in the concurrence, because Burnham derived benefits of the state.

a) Scalia ignores Shaffer v. Heitner, which says you must have min. contacts

b) Decision based on tradition- courts have jx over those that have a physical presence in their states. (Scalia)

c) Int’l Shoe for situations in which Δ is not in the state and Shaffer about in rem. (Scalia)

d) Must be induced to come to the state voluntarily

GENERAL NOTES ON PJ:• Repeated purchases in a state are not as persuasive as repeated sales within a state for es-

tablishing PJ. • For PJ in Federal District Court: Rule 4(k)(1)(a) says—if you have PJ within the state forum,

then you have PJ within the Federal District Court

What happens when a party does not comply with discovery?

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-Insurance Corp. of Ireland: the failure to comply with jurisdictional-related discovery may constitute implied consent to Jx.

- Rule 12 (h): a defense of a lack of Jx over the person is waived if not timely timely raised in the answer or responsive pleading.- it is waived or presumed that there is Jx when it is not challenged- Personal Jx is a right that you can lose or waive- Hammond case says that refusal is an admission

Can forum selection clauses assert Jx?-Carnival Cruise Line v. Shute: reasonable forum selection clauses are effective in

imposing jurisdiction.- Brings back issue of consent from Pennoyer

- different than Burger King, b/c it chooses a forum, not a law.

- Dissent: should be invalid, b/c they were not freely bargained for, create

additional expense for one party, or deny one party a remedyQuasi In Rem Jx

Traditional Approach: in rem jx would allow you to proceed against the property. Pen-noyer v. Neff and Harris v. Balk.

Shaffer v. Heitner: applies in personam standard to quasi in rem—Scalia: “Pennoyer lives—it’a all about tradition” vs. Brennan “Pennoyer is dead—it’s all about purposeful availment”

Jx cannot be founded on property within a state unless there are sufficient Contacts within the meaning of Int’l shoe.

Attaching property will not create personal jx. The property is just a contact. It must be fair to the Δ for the court to assert jx over that property.

Appellants have nothing to do with the state of Delaware.

No attachment jurisdiction as seen in Pennoyer.

It is not saying that property has no effect, it is saying it must be related to the claim.

Concurrence (Powell): has a difference of opinion on real property. Suggests real property has really strong ties to the state. Follows a tradition of power.

Concurrence (Stevens): has an interest with notice. Δ’s had no notice that buying stock would drag Δ’s into Delaware.

A state may have jurisdiction over a piece of property with little contacts if it is the only state where suit may be brought.

Notice:

Mullane: Constitutionally, you must use a form of notice that is:1. Reasonably calculated2. Under the circumstances—work from fact pattern. Does party give best effort?3. To give “actual notice” to afford them an opportunity to present their objections.

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• Everything is contextual (under the circumstances)—Key is to look for a better way to give notice—Is there a better way?—Probably. Then it seems that maybe this form of notice wasn’t reasonably calculated under the circumstances to give actual notice.

• You know you are staring at a Mullane problem when there is any kind of service by publica-tion.

3 ways to serve process (process is summons and a copy of complaint):1. Personal Service (substituted service)2. Service by mail3. Service by publication 4. leaving the summons at defendant’s usual place of adobe with a person of suitable age and

discretion.

• Classic Form of notice is hand delivery—satisfies Mullane• Substituted Service (spouse, partner)—satisfies Mullane• Registered Mail—satisfies Mullane• Service must be made within 120 of filing suit FRCP 4(m)—complaint can be dismissed un-

less P can show “good cause” for lack of timely service—does not apply to foreign D• Service of a summons or filing a waiver of service is effective to establish jurisdiction over the

person of a defendant who is a party joined under Rule 14 or Rule 19 can only be served at a place within a judicial district of the United States and not more than 100 miles from the place from which the summons issues

SERVICE OF PROCESS: FRCP 4:• P can request waiver of service:

• Carrot--D can waive service in a timely fashion (timely waiver of service is 30 days from date it was sent under FRCP 4(d)(2)(f): if service is waived then D has 60 days from time waiver request was sent in order to answer or file motions

• Stick--If D does not waive service: D must pay to serve (and D only gets the normal 20 days after service under FRCP 12(a)(1) to file an answer or motion)

FRCP 4(d)(1): A defendant who waives service does not waive any objection to venue or ju-risdiction of the court.

FRCP 4 (d)(3): If a Δ waives service in a timely manner, he is not required to serve an answer to the complaint for 60 days, whereas if he didn’t, he must answer in 20 days.

FRCP 4 (d)(5): Costs to Defendant for denying waiver: (1) cost incurred in effectuating ser-vice, (2) costs of any motion needed to collect service costs, including reasonable attorney fee

FRCP 4 (e)(1): If the Δ does not waive service, π may serve according to: (1)The State law for service- π may rely on the state law of either:

a. the state where district court (in which the action is being brought) is located. Orb. the state where service is being made

(2)the federal law for service- π may choose any of following methods to serve under federal law:

a. personal (actual hand delivery)b. abode (no business service)c. substitute service- to an authorized agent

FRCP 4(h) Service on Corporations/Associationsi. applicability- it applies to domestic or foreign corp., partnership, or unincorporated ass’n subject to suit under a common name. A waiver of Service has not been

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obtained and filed.

ii. service shall be effective when: (1) State law is followed (as per Rule 4(e)(1)) or (2) if Δ is a foreign corp. and Rule 4(f) is applied or (3) delivering a copy to an authorized general agent officer Manager

FRCP 4(k) Territorial Limits of Effective Service that tell you there is Jx1. Service of a summons of filing of a 4(e) waiver is sufficient to establish Personal Jx if:

(A) the forum district state allows it or(B) the defendant is a joined party (as per Rule 14 and 19) and is served within 100 miles from where the summons was issued or(C) the Δ is subject to the Federal Interpleader §1335 or

(D)it is authorized by a U.S. statute2. Δ not subject to jurisdiction of any state: A waiver of service notice or service of a summons is effective to establish personal jx if

(A) the Δ is not subject to jx of any state and(B) it is consistent with Constitution and laws of U.S. (i.e. minimum contacts)(C) the claims arise under federal law.

FRCP 4(m) Time Limit for Service1. service must be made w/in 120 days after filing complaint2. if service not made in time case will either be:

(a) automatically dismissed (without prejudice)(b) by service of a summons under this rule

3. if π shows good cause , the court may extend time period4. does not apply to foreign persons.

In general—FRCP 4(k) basically says that any means of trickery may be used within to serve within the juris-diction—may not use trickery to draw a D into a jurisdiction. If the requisites of personal jx exist, proper service establishes jx.

Waiver of Service is ok only under (e) (f) (h), not the U.S. govt, infants or competence

Rule 4 provides for service by any individual who is not a party and is at least 18 years old.

If the Δ does return wavier of service, the case proceeds as if process had been served. If Δ does not return the form within the time specified in the rule, the π must proceed to have a sum-mons served more formally, using procedures set in Rule 4 (e)-(j)

-By waiving you give up any objections on the way it was served (Rule 12(b)(4)(5)

Long Arm Statutes:A. Types

1. Whether Constitution allows it is Ok. (California long arm statute)2. statutes w/ particular categories. Analyze the statute. Specific act.3 combination of 1 & 2

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B. General Approach1. Does the statute fall w/in the scope of the long arm?

a. On practice test, TA said to look @ each section and analyze it using the facts of the caseb. Some statutes require you to have more contacts to allow service of

process than are currently required.3. Do a minimum contacts test to see if it constitutional under Due Process

SPRING 2016 ROSENBLATTVenue, Transfer & forum non conveniens:Venue: operates on what geographic sub-division (judicial dist.) Tells you where in the state a claim may be made.

Federal Venue Rules § 1391:

Under § 1391(a)—with jx from § 1332 (Diversity Jx)Venue will be proper where:• The district where Δ resides, if all Δ reside in the same state. If you have lawsuit w/ 3Δs from

me 3 different cities from same state, venue can be in any city.• District court where substantial events or property is located• Or if there is nowhere else where they can be sued wherever there is personal Jx.

Under § 1391(b)—with jx from § 1331 (FQ Jx and all else)Always do B1 and B2, if neither applies, move onto B3 Venue will be proper where:• D resides, if all reside in the state• District court where substantial events occured or property is located• Or failing that in any jx where D may be found. Different than (a), because (a) says PJ.

Under § 1391(c)—venue for Inc.• Corporations reside in any district where PJ over them is proper at the commencement of axn• If none available, look to the district with the most significant contacts• If there is no particular district in the sate in which the company has enough contacts for PJ,

but the state as a whole “qualifies”, the entire state is considered to have PJ

§ 1391(d)—an alien may be sued in any district

§ 1391(e)- venue for an officer or employee of the U.S.• Where a Δ resides (if all Δ are in the same state).• Where substantial events or property exist• If no real property, where the π lives

§ 1391(f)- venue for a foreign state• Where substantial events or property• Where vessel or cargo is situtated• Wherever the agency is licensed to do business

General Notes• Venue can be waived such as the way it was done in Carnival Cruise Lines• Many states no longer allow you to have venue over property where it is located.• You may challenge venue through a pre-answer motion [Rule 12 (b)(3)] on in answer, if

not it is waived.

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• When an action is removed from state court goes directly

3 levels1) Statutory authorization for venue

a) 28 USC § 13912) transfer--change of venue §1404 and §1406:

a) will be allowed “in the interests of justice” and can only change jx when it would have been proper to originally file in this jx

Considerations for change of venue:(1) location of parties or(2) location of witnesses or(3) location of evidence or(4) familiarity of transferee jx with appropriate governing law

3) dismissal--forum non conveniens §1406, waiver of venue:

a) ordinarily a strong presumption in favor of the π’s choice of forum, which may be be overcome only when the private and public interest factors clearly point to trial in the alternative forum.

b) dismissal for forum non conveniens will be allowed where there is a forum that is sub-stantially more convenient and where P can still obtain adequate relief:b) “in the interests of justice”)[Piper]—Gilbert factors

Private Interests(1) access to sources of proof or evidence(2) availability of witnesses(3) view premises(4) other practical problems (convenience catch all). Try to make things inexpensive

Public Interests (1) local interest in adjudication(2) governing law(3) jury duty (burden)(4) court congestion(5) avoid conflict of laws

b) In Federal System:i) Can only transfer to a federal court in which the action could have originally been

brought (THUS potential transfer court needs SMJ, PJ, & Venue)2) forum non conveniens

a) Not a convenient forum for the Δi) Correct court not in your court systemii) Can not “transfer” to a different system—must dismiss from forum non conveniens

and then re-file in the new forumiii) Balance of factors on forum non conveniens—new forum must be “substantially

more convenient” and P must also be able to obtain adequate b) It would be improper if there is a possibility of an unfavorable change in substantive lawc) would not allow the dismissal if it provides no remedy

• CA does not allow dismissal for forum non conveniens where P is a CA resident

Choice of law rules regarding transfer:• If a case is transferred under:

• § 1404(a)—Change of Venue (convenience)—then the law of the transferring jx applies• § 1406—Transfer to cure defects—then the law of the transferee jx applies• § 1631—Transfer for want of jurisdiction—then the law of the transferee jx applies. Most

courts use if for subject matter Jx.

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• Changes of venue and forum non conveniens are generally tough standards because courts want to give deference to P’s choice of forum

Forum non conve-niens

Venue & transfer

Federal Dismissed and re-file in Foreign coun-try

Moved between Districts

State Dismissed and re-file another State or country

Moved between County

Erie Doctrine: which law applies in a federal diversity case?

1938: FRCP enacted1938: [Erie] –in general Federal District Courts are use federal procedural law and state substan-tive law in diversity cases

Federal Law vs. State Law (in div jx cases)• A rule is considered substantive if it has a “substantial effect upon the eventual outcome of

the case”• Consideration of whether a law is procedural / substantive is done by looking at “impact at

the outset of the case”• By the time you get to Hanna—easier standard--all a law has to be is “arguably procedural”• State of limitations are routinely held to be substantive law—SOL=substantive

Cases:Swift v. Tyson:Rules of Decision ActFederal courts do not need to follow all state case law. Should follow the general law.Would adopt only the local usages of the state, not judicial interpretations of the common law.“Law should not be one thing in Rome, and one thing in Athens.”

Erie: • Federal courts must apply state substantive law of state in which it is sitting• Federal courts must choose between state and federal procedural law:

• To avoid forum shopping• To avoid inequitable administration of justice

Reasons for overruling Swift:No broad uniformity of the lawGrave administration of the law

It introduced discrimination for the out-of-staterDeclared unconstitutional, since it authorized federal judges to “make” law in areas in Which the federal gov’t has no delegated powers. There was an invasion of states

rights.Increase in forum shopping

Incorporation of Tennessee, create diversity to get out of state court to get into

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federal court so they won’t abide to state laws that may be detrimental to them

What if there is a transfer? If a transfer is a proper forum, then the law of the transferor forum governs. It does not matter who asks for the transfer.

What state law should be followed?Follow existing state law precedent w/out making creative predictions of how it might be treated in future federal cases.Apply as it is announced or how it would be announcedJudges cannot make up state law, but entitled to make an educated judgment on what Rule the state Supreme Court would apply to the case today, rather than merely parroting what the rule was when the last case on point was decided.

B/C of conflict of laws, even though it was brought in New York, the court applied PA law. Each state has a body of law called conflict of laws which specify the circumstances in which the courts of that state should follow laws of other jx, such the states, federal, orforeign law.

There is no “general” federal common law

Concurrence by Justice Reed- No unconstitutionality.

York : • When it is unclear whether a state rule is “substantive or procedural”—federal courts use

“outcome determinative test”—(Hannah’s “arguably procedural” standard changes this). As-suming it was procedural, the court looked at whether there would be different outcome.

• This distinction between “substantive or procedural” is evaluated from the perspective of the “outset of the lawsuit”

• Procedural and substantive are immaterial. They are labels that are manipulative.• Does it significantly effect litigation to ignore state law.• Going to federal court should not result in substantially different result.• After this ruling, Ragan, Cohen, Benhardt, Woods adopted the state law over federal

Byrd:3 part balancing test1. Is state interest bound up in the rights and duties of that state

1. how integral is it?if the state law in question is integrally bound up with the definition of the state-created substantive rights and obligations of the parties, then the state interest in the federal court applying this state law is high

2. will state legislature say you are destroying our entire scheme by having jury decide?if YES then state law applies—If NO then on to #2

2. then balance state and federal interests (always one federal interest uniformity)1. Is it an essential characteristic of the federal system.

3. outcome determinative- in this case, jury or judge would do not guarantee a different out-come in the case.

Says York does not make much sense by always using state law

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Hannah:2 part test (outlined below)

HANNAH FRAMEWORK:

Hanna Prt II §2072: State Statute v. Federal Rule (FRCP)

Hanna Prt I §1652: State Statute v. Federal common law

1 )Is Federal Rule Constitutional (Sibach Test)

a) Is it Arguably Procedural? (if it is in the gray area are between substantive and procedural then the Fed. Rule applies)

2) Does it violate the Rules Enabling Act (REA) §2072 (a) is it a rule of practice or procedure (b) i.e. Does it abridge, enlarge, or modify a substantive right (is the Fed. Rule intended to effect peo-ples lives outside of court).

• if satisfied, it wins, if not turn to twin policies test.

• Do not forget to look at 2nd part and write why it occurs. Do not write it is federal rule, so it wins. That equals an F. there will be times where law is abridged, etc.

Would applying federal rule of deci-sion violate twin policies of Erie

1) To discourage forum shop-ping (would applying a different rule than federal rule in federal court encourage forum shopping?)

2) To avoid inequitable adminis-tration of justice(equal protection - will applying a different rule in federal court result in discrimination against citizens in the state in cases where there is di-versity?)

** If the fed. rule would violate one of the two twin policies of Erie-- some jx would say just apply the state rule-- BUT Gasperini says: even if the state law makes it through the Hanna framework then before you apply that state procedural law you still have to run it through the Byrd balancing test:

Byrd: 3 part balancing test1) is state interest bound up in the rights and duties of that state

if YES then state law applies—If NO then on to #22) then look at federal interests (always one uniformity)3) even if outcome determinative you still have to BALANCE state vs. federal interest

GENERAL NOTES on Eire:• Congress has the power to pass procedural rules for federal courts, under Article 3 and the

“necessary and proper clause” from Article 1 § 8.• If a federal RULE is controlling and Constitutional then it must be applied under the

Supremacy Clause (Article 6)

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• Substantive lawsPrimary decision makingWould it cause unfair administration of the law

• Is it bound up (Byrd)• If there is a federal statute and state statute, the federal statute prevails, because of

supremacy clause.

Burlington: involves a state statue and federal ruleCourt applies REA Test

Gasperini: Looked at the modified-determination test, then the Byrd test.

General Notes:Once we decide what state law applies, we need to know which state law applies and which law applies?

Cerification- federal court certifies question in the state supreme court and asks for a response. The state law has to permit it though

Abstention- fed issue and state issue in same case. Let state issue get solved and then come back and figure out what is left at federal level.

DUE PROCESS

Every procedure is subject to examination under the Due Process Clause

Largest problem of provisional remedies1. most common is preliminary injunction2. temporary restraining order- you get @ the beginning of lawsuit.

Fuentes: In order to comply with procedural due process, notice and an opportunity to be hard must be provided prior to seizure of any protected interst.

• Due process requires notice be provided prior to the deprivation of life, liberty or property by adjudication. A pre-attachment opportunity to be heard is consistent with procedural due process.

• Want to give a fair hearing before seizing somebody’s property• Due process restraints are not limited to necessities.• There are some prejudgment attachments that are allowed

1. necessary to secure an important governmental or general public interesta. public safety- contaminated, etc. hardship to the public b. bank seizures

2. need for very prompt action a. jurisdictional purposes 3. state had kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute.

• Overmyer Co. Frick Co.- it could be waived by the parties in their K• It applies to placing liens on properties as well.

PLEADING

Common Law Pleading- must plead specifically to the COA asking King’s court to hear the case• Common law courts- limited in remedies and mostly $ damages• Equity courts- complex dispute, resolution problems

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a. if you could get adequate relief from law courts, can’t use equity courtsb. could get specific relief against a person

1. injunctions and specific performanceCode Pleading- instead of complicated COA’s, pleading just plead facts

• Require more precision and detail than is required in notice pleading jurisdictions.Notice Pleading

Haddle v. Garrison: Introduces Rule 12(b)(6): permits a Δ to move to dismiss a complaint on the grounds that the π has failed to state a claim upon which relief can be granted.

TIME LIMITS FOR PLEADING:• FRCP 12(a)(1)(a)--From the receipt of service, D has 20 days to file an answer or a motion• FRCP 12(a)(1)(b)--if D waives service then D has 60 days from the date the waiver request

was sent to file an answer or a motion• FRCP 12(a)(4)(A)-- Following initial 12(b) motion—an answer, if still required, must be filed

within 10 days following notice of the court’s decision on that initial 12(b) motion

The Complaint: FRCP 8(a)3 parts:1. Short and plain statement of the ground upon which the court’s jx depends2. Short and plain statement of the claim showing that the pleader is entitled to relief3. A demand for judgment for the relief the pleader seeks

In Leatherman, the court ruled that there is no need for a “heightened pleading stan-dard” for civil rights cases. Court looks at FRCP 8(a)(2).

Heightened pleadings for individuals are still lawful, but not for municipal defendants.

Pleading with particularity: FRCP 9• “disfavored claims”--certain special matters (7 of them set out in FRCP 9--including fraud

etc.) as set forth in FRCP 9, must be plead with particularity (includes answer)• Olsen v. Pratt & Whitney Aircraft: Fraud must be pleaded with specific particularity (9B)

1) detail the statements…that π contends are fraudulent, 2) identify speaker, 3) state where and when the statements…were made and 4) explain why the state-ments are fraudelent2) Olsen fell short of specifying what was said, or the terms of the advice, coun-sel, and recommendations. 3) π’s who do not plead specifically are given an opportunity to amend.4) fraud is a disfavored claim. They are serious and time consuming.• Qualified Immunity:

• Shultea v. Wood: 5th circuit tried to require heightened pleading for “qualified immunity” complaints in Leatherman—Supreme Court said nope FRCP 9 specifies circumstances for pleading with particularity—Next case, Shultea—ok, P file a complaint, D file an answer with the words “qualified immunity” in it, THEN P must do a reply (granted under FRCP 7) in which he “replies with particularity” to D’s qualified immunity

• Courts generally must allow at least one amendment of the complaint

Motion to Dismiss: FRCP 12(b)--(in a state court called demurrer)—“so what” motion• FRCP 12(a)--From the receipt of service, D has 20 days to file an answer or a motion—if D

waives service then D has 60 days from the date the waiver request was sent to file an an-swer or a motion

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• Defenses against the validity of the complaint: as set out in FRCP 12(b)1) SMJ 2) PJ3) Venue (improper)—dismissal or transfer4) Insufficient process5) Insufficient service of process6) Failure to state a claim7) Failure to join an indispensable party

• Consolidated defense 12(g): all 12(b) motions must be made before pleadings. When there is no response required, they may be made in trial.

1) a party can make a consolidated defense in order to join motions under this rule with any other motions available to the Δ2) If the motion is made, any available Rule 12(b) defense that are omitted will be deemed to be waived (unless allowed by 12h)

• FRCP 12(h):(1) # 2-5 must be put in your first rule 12(b) motion—or they are waived

a. lack of personal jxb. improper venuec. insufficiency of processd. insufficiency of service

(2) # 6 & 7 may be raised anytime through the end of trial (don’t have to be in the initial rule 12 response)

a. failure to state a valid claimb. failure to join a 3rd party

(3) # 1 SMJ is NEVER waived—can be anytime

• Following initial 12(b) motion—answer, if still required, must come within 10 days following notice of the courts decision on initial 12(b) motion

• If P serves D out of state via long arm statute then the time to answer is covered by that state’s rule

Answer: • From the receipt of service—D has 20 days to file an answer or a motion—if D waives service

then D has 60 days from the date the waiver request was sent to file an answer or a motion• Following initial 12(b) motion—answer, if still required, must come within 10 days following

notice of the courts decision on initial 12(b) motion

FRCP 8(b)--An answer must contain:a. Admission, denials, or lack of knowledge

1.Zielenski: A general denial will not be valid if any of the allegations being denied have been admitted by both parties to be true. Should have made a specific denial2. deny only that you dispute.

b. Defensesc. Counterclaim (CA. calls this a cross-complaint)

d. types of denials:1. specfic-applying only to parts of the pleading2. complete- applying to entire complaint

3. general- applying to the entire complaint, except paragraphs specified.• FRCP 8(d)--Anything that is not denied in answer is assumed to be admitted—anything “I

don’t know” is assumed to be a denial• Answer must contain specific denial or admission of EACH declaration of the complaint, or a

general denial with specific admissions of the declarations in the complaint• FRCP 8(c)--Answer must contain all affirmative defenses

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1. Layman: When Δ raises a new matter, not yet an issue in the case, it should be plead as an affirmative defense.

a. Easements are affirmative defenses that should be set forth in the answer.

REPLY: FRCP 7(a)--(a request to the court for an order)

• FRCP 12(a)(2)--Time frame for a reply (mandatory for cross-claims) is 20 days form the ser-vice of the answer or 20 days from the Court orderAmendments & Supplemental Plead-ings

• FRCP 15(a)--A party may amend pleading once as a matter or right, without a motion, any-time before a responsive pleading is filed

• When an answer does not require a responsive filing--D may amend his answer within 20 days after answer is filed –FRCP 15(a)

• Otherwise—amendment can only be made by written permission of adverse party or by leave of court:

Leave of court to amend shall be freely given when justice so requires unless 1 of the 5 following:• undue delay (may not be enough on its own)• bad faith or dilatory motive• repeated failure to cure deficiencies by prior amendments• undue prejudice to opposing parties –(most important)• futility of amendment

• A response to an amended pleading shall come in the time remaining for the response to the original pleading or within 10 days after filing of the amended pleading whichever is longer

Amendment to conform to the evidence:

• FRCP 15(b)--Pleadings do not matter as long as there is express or implied consent to the issues—AND amendment can be done anytime (even after trial)

• Whole point is to avoid unfair surprise

• FRCP 15(c)—Relation Back• When a amended claim arises out of the “conduct, transaction or occur-

rence” then the amended pleading relates back to the date of the original pleading

• Whole point is to overcome SOL• FRCP 15(c)(3) When adding a new party--relation back is only allowed when:

A) New party has received notice and won’t cause prejudice against new party

ANDB) New party knew or should have within the original time for service of process (120 days) that but for a mistake they would have been served

• In CA—“Doe” rule—set out unnamed “Doe” parties can relate back up to 3 years when you name them

• When adding new claims against existing D’s: you can only do so when narrowing the cause of action (ex: general personal injury to specific malpractice)

• Can not go from specific to general because new claim does not stem from same “conduct, transaction, or occurrence”—who point is to avoid unfair surprise as a re-sult of not being on notice

• Adding new claims going from general to specific does not violate the general purpose of SOL’s—Reasons for SOL:

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• To give “repose” (peace from having to dig shit up from your distant past)• To avoid stale evidence• To avoid uncertainty• To promote diligence• To avoid applying new standards to old situations

• FRCP 15(d)—when new stuff happens after the pleading—they can come in under the same standard as 15(a)—“reasonable notice given and terms are just (i.e. no unjust surprise)

Sanctions for Frivolous Pleadings

FRCP 11: (since the year of our lord 1993): serves a restraint on attorneys• Lawyer must sign pleadings• Purpose: Imposes an affirmative duty to act in good faith • EFFECT OF SIGNATURE: Lawyer who signs (files or advocates) a pleading is attesting

that to the best of his knowledge information and belief that based upon a reasonable in-quiry under the circumstances that the following are true:1. The document is not present for an improper purpose (harassment)2. Claims are warranted by existing law or a non-frivolous argument for change in law or

establishment of new law3. Claims have or are likely to have evidentiary support (Business Guides)

A represented party may be sanctioned in addition to or instead of its attorney for vio-lating the Rule 11 requirement that all information in signed documents submitted to the court be reasonably accurate.

4. Denials or Factual contentions are warranted by the evidence or are based on lack of information

• With regard to reasonable inquiry—“bad faith” is not required, attorney can have a “good faith” belief that a reasonable attorney wouldn’t have

• “safe-harbor” rule: • before filing a FRCP 11 motion—it must be served on the adverse party 21 days prior

to filing it with the court—in that 21 days, adverse party may amend withdraw com-plaint

• Purpose of sanction is to “deter” bad faith conduct in the future. It does not always have to be monetary. In addition, costs may be given to the other attorneys.

• FRCP 11: Pre-1993• No safe harbor rule—and if you won a FRCP 11 motion then court had to impose

mandatory sanction for attorney fees (paid to other side)—NOW court may impose sanctions for attorney fees payable to the court (or the other side)

• Loadstar method: court may reduce the attorneys fees to be awarded in FRCP 11 sanction to a “reasonable level”—totally discretionary

General Notes:Parties (π) can’t be sanctioned under (b)(2)Law may be sanctioned as well. Courts can sanction you w/out Δ motion.Can’t file Rule 11 for threats not on paper

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Documents

Civil Procedure II Outline