Civil Procedure I OutlineTable of Rules

1. US Constitution Article IV, § 1 – Giving Full Faith and Credit to judicial proceedings of other states2. US Constitution Amendment XIV, § 1 – Due Process Clause (to states)3. FRCP 4(k) – Establishes PJ over defendant who is served in state (with summons or waiver)4. FRCP 4 – Summons – How to Serve Process on Defendant

a. FRCP 5 – Service and Filing of Pleadingsb. FRCP 6 – Time for Motion Papers

5. US Constitution Article III, § 2 – Constitutional grant for Diversity (between citizens of different states) and Federal Question (arising under)6. 28 U.S.C. § 1332 – Statutory grant for Diversity Jurisdiction

a. 28 U.S.C. § 1359 – Parties collusively joined to defeat diversity 7. 28 U.S.C. § 1331 – Statutory grant for Federal Question Jurisdiction8. 28 U.S.C. § 1441 – Actions Generally Removable9. 28 U.S.C. § 1446(a)(b)(d) – Procedure for Removal10. 28 U.S.C. § 1447 – Procedure after Removal (Remand)11. 28 U.S.C. § 1448 – Process after Removal12. FRCP 81 – (c) has rules for Removed Actions13. 28 U.S.C. § 1391 – Venue Generally 14. 28 U.S.C. § 1404 – Change of Venue (when original venue for court is proper)15. 28 U.S.C. § 1406 – Cure or Waiver of Defects (Change for improper venue)

a. Forum Non Conveniens – Judicially created to dismiss when case is better handled in another judicial system

16. FRCP 12 – Defenses and Objections, Motions, Pleadings17. FRCP 7 – Pleadings Allowed18. FRCP 8 – General Rules of Pleadings

a. FRCP 9(b) – Pleading Fraud or Mistake 19. FRCP 10 – Form of Pleadings 20. FRCP 15 – Amended and Supplemental Pleadings 20. FRCP 41 – Dismissal of Actions21. FRCP 11 – Signing Pleadings and Motions – Ethical implications22. FRCP 18 – Joinder of Claims 23. FRCP 20 – Permissive Joinder of Parties 24. FRCP 21 – Misjoinder/Non-joinder of Parties 25. FRCP 13 – Counterclaim and Crossclaim 26. FRCP 42(b) – Separate Trials27. 28 U.S.C. § 1367 – Supplemental Jurisdiction

←

I. Introduction – Buffalo Creek

2

←Goals of Civil Procedure are to provide accuracy, consistency, fairness, efficiency, and finality

Substantive vs. Procedural Law (Erie doctrine) – Statute of Limitations is substantive law NOT a Common Law subject – founded in Constitution, Statutes, FRCP File and Serve a Summons/Complaint to a defendant. Summons is a court document, Complaint tells

the court what is alleged, what happened, and what is being sought Three forms of relief – Compensatory, Punitive, Injunctive

o After complaint, defendant can file motions and/or answer by admitting/denying, raising affirmative defenses

Summary Judgment – no genuine issue as to any material fact and therefore as a matter of law, the moving party must “win” on this issue OR the case should not go to trial (if this is denied, issue goes to a jury to determine it)

II. Personal Jurisdiction – Where to Sue In what state(s) can P sue D? Federal/State doesn’t matter, court has to have POWER over defendant

or over his property Three kinds – In Personam, In Rem, Quasi-in-rem (QIR)

o In Personam – Power over defendant because of connection with forumo In Rem/QIR – Power over defendant’s property

Ultimate limit of having “power” is Due Process (Constitutional Requirement), there must also be a statute giving jurisdiction (i.e., long-arm statute)

o First assess whether a statute allows for PJ, if yes, then do Due Process analysis Two kinds of In Personam Jurisdiction – General or Specific

o General – Defendant can be sued in forum on a claim that arose ANYWHEREo Specific – Defendant is sued for a claim that arose in the forum

← Constitutional Limits ← Personal Jurisdiction is a fundamental issue of Due Process and changes historically due to changes in communication/technology← Pennoyer v. Neff (1878) – Court has power over everything/everybody in the state

3

A second court is supposed to give “full faith and credit” to the judgment of the first court. The Federal court in the second case need not give full faith and credit to the state court in the 1st case because the 1st court lacked personal jurisdiction

Neff wasn’t aware of the first case because he had no notice. Mitchell did not ATTACH the property as required by the Oregon Code.

o If Mitchell had attached the property, Neff still might not have had actual notice but it would be legally sufficient

o Every defendant must have notice against them and an opportunity to be heard The other requirement is that of power. No one is subject to jurisdiction of a state unless they (1)

appear in court (giving consent); (2) served within the state or agent is served within state (presence = general jurisdiction); (3) resident of state (domiciled in forum = General PJ); (4) have property in state that is attached

o Service or attachment is demonstration of state’s powero Serving Neff in CA would not help power and would only overstep OR’s bounds. His property

must be attached. If state code provided for service in other states, this would violate 14th amendment

Case 2 is finding who has title to property, in rem (using property as a means of securing PJ and case involves property); first case was over money – in personam

← Milliken v. Meyer – upheld PJ over a citizen not in the state – the authority of a state over one of its citizens is not terminated by his absence from the state

For in rem, you’re only worried about the property and you’re limited to only the extent of that property; in personam is over the person

←← Hess v. Pawloski (1927) – Given growth of automobile and transportation, states make statutes providing that the DMV is out of staters’ agent of process, saying out of staters give implicit consent to be sued in a state while using their roads

Consistent with Pennoyer because it’s service of process in state on D’s agent Expands consent to implied consent

← International Shoe v. Washington (1945) Washington statute says notice must be served personally on employer if employer is in state or by

registered mail to last known address – state serves on employee in the state and mails to HQs in Missouri

Court has jurisdiction if defendant has such minimum contacts with a forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice

A. Minimum Contacts Test: Two factors – (1) are contacts continuous and systematic OR single and isolated? (2) Does the contact give rise to the claim OR is it unrelated?

o Benefits defendant gets are tied to level of connection with state. Benefits beget obligations to the state

← ← Gives Rise Related Unrelated

← Continuous/Systematic

← Yes ← Maybe?

← Single/Isolated ← Maybe? ← No

4

← B. Compare Minimum Contacts with Notions of Fair Play and Substantial Justice – Benefits/obligations is

a fairness principle o If contacts are continuous/systematic – court has GENERAL PJo If contacts just give rise – court has SPECIFIC PJ

Justice Black concurring – worried Fair Play and Substantial Justice could be stretched too far and is vague

o Nothing in the Constitution about “fair play” and “reasonableness”o Wrong interpretation of due process clause that was unnecessary because this was an easy

case since the contact (International Shoe’s business in Washington) was continuous and the cause of action was related to that contact

Nowhere does this overrule Pennoyer. This is the test ONLY if defendant is not present – it implies the 4 bases for power in Pennoyer are correct

Modern Era← Grey (Ill. Supreme Ct.) If a corporations sells its product for ultimate use in another state, it’s not unjust to hold them accountable there for any damages caused by defects. May be single/isolated but definitely gives rise to the claim←← McGee v. Int’l Life Ins. (1957) – PJ over a TX company in CA when a CA citizen paid premiums to them and mailed her a reinsurance certificate. They made contacts with the state

D solicited that contact in CA Claim arose from D’s contact with the forum – for breach of very contract that brought defendant to

the forum State’s interest – California had an interest in providing a court for it’s citizens

← Hanson v. Denckla (1958) – No PJ for a DE bank in FL since a PA citizens set up the trust in DE then moved to FL – DE bank never established contacts with FL

Court finally says no! Purposeful availment – To have a contact under International Shoe, contact must result from purposeful

availment. The DE bank never reached out to Florida; the only reason they were there is because their client unilaterally moved ther.

Unlike McGee where the TX company sought business in CA←← World-Wide Volkswagen (1980) (Justice White)

Regional Distributor and dealer in NY challenge that they meet the OK Long Arm Statute and believe statute is unconstitutional

5

Statute was written after International Shoe believing that defendant would still benefit from the state since the car was used there

Fair Play and Substantial Justice analysis – (1) Burden on defendant, (2) state’s interest, (3) plaintiff’s interest, (4) interstate efficiency, (5) shared state policy – REASONABLENESS FACTORS

o Burden not so severe here, so no PJ because of lack of minimum contacts Defendants must seek out the benefits that give rise to the obligations – purposeful availment. Degree

of predictability that allows defendants to structure their primary conduct with some minimum assurance as to when that conduct will/will not render them liable to suit

o It needs to be foreseeable that defendants could get sued in that forum o Here, plaintiff drove car to OK, not defendantso Contrary to Grey, Ohio company put product together for marketing in Illinois (they knew it was

sold there) No jurisdiction because defendant did not purposefully avail themselves of OK Brennan Dissent – Car is intended to be moved around, there’s not much burden on defendant Pay attention between use of rules Hanson (unilateral activity of one party can’t attribute contact to

defendant) over Grey (Stream of Commerce Test) and Minimum Contacts Analysis: (1) Continuous/Systematic vs. Single/Isolated; (2) Gives Rise/Unrelated; (3)

Purposeful Availment

← Keeton and Calder (1984) PJ upheld since defendants were targeting harm in CA (effects test) You can have minimum contacts by making an effect in the forum. You don’t need physical presence

←← Burger King v. Rudzewicz (1985) (Justice Brennan)

First case in Federal Court!o Federal Court looks to FL Long Arm Statute via FRCP 4(k)(1)(A), going to Federal Court doesn’t

change the PJ analysiso 5th Amendment protects due process by Federal Government, 14th extends it to states –

Federal courts in a given state have the same reach as state courts under the federal rules This case is about evaluating PJ under a breach of contract. Merely having a contract with a FL citizen

doesn’t make you liable to be sued in FL You must have a relevant contact before fairness is even asserted. Here, the contact was easy because

they made contract (availed themselves of FL law) in Floridao With a contract, focus is more on contract’s relationship with forum state than with defendant’s

action – CONTRACT TEST

6

Unrelated

Gives Rise

Single/IsolatedPurposeful Availment

Continuous and Systematic

On Fairness – burden on D to show that forum is unconstitutional – so gravely inconvenient that you’re at a severe disadvantage in the litigation. Wealth of parties is irrelevant

Choice of law analysis is separate from PJ analysis – Choice of law is around claim’s relation to state (broad), PJ is defendant’s relation to state (narrow)

o Contract was a 20 year deal, through negotiations and course of dealing, defendant purposefully availed himself

o Determined to not be unreasonable Stevens and White Dissent, saying this offends notions of fairness

←← Asahi (1987) (Justice O’Connor)

Stream of Commerce question – if you make something and sell it to State B, company in state B uses your part in their product and sells it to states C, D, E. Can you be sued in C, D, E?

All judges except Scalia agree on Reasonableness – unreasonable to litigate against Asahi in CA (too heavy a burden of asking a foreign defendant to litigate in US and plaintiff is Taiwanese – not a CA citizen)

Even Brennan finds this unreasonable since ALL of the factors are against CA litigating this suit Stream of Commerce/Minimum Contacts analysis:

o Brennan says all you need is awareness for stream of commerce. He believes O’Connor’s analysis is a departure from Worldwide Volkswagen where the court distinguished between stream of commerce (yes PJ) and someone else bringing it to state (no PJ) since putting something in stream of commerce gets you economic benefits

o O’Connor - Awareness that it might go to forum doesn’t mean purposeful availment, defendant must have purposefully directed act to the forum state (an intent to serve forum state);

NO ONE’S STREAM OF COMMERCE ANALYSIS YIELDS A MAJORITY OF JUDGES SO COURTS USE BOTH TESTS (purposefully directed vs. awareness)

Transient PresenceBurnham v. Superior Court of California (1990) (Justice Scalia)

Ex-husband is served by his ex-wife in CA when he’s visiting. Only way this works is if CA has General jurisdiction

Is presence and being in the state grounds to assert PJ? YES Question becomes do the Pennoyer traditional bases of power live or were they replaced by

International Shoe factors? Another split!o Scalia – Presence when served is ok on it’s own – no need for Int’l Shoe minimum contacts

analysis because of Pennoyer’s historical pedigree Shoe itself implied this would be ok on it’s own because of presence in the state Believes Shaffer (below) said that where the defendant is not present, International

Shoe should apply – here, D is presento Brennan – Historical pedigree doesn’t matter, you must assess under Shoe always

7

He said Burnham’s contacts were sufficient to give general jurisdiction though, so all justices agree

According to Brennan, anyone who has ever set foot in California for 3 days is subject to general jurisdiction there (received benefit of CA’s roads, fire, etc.)

General PJ and Consent General PJ is Continuous/Systematic when it’s unrelated to the claim Perkins is clearly General PJ since Perkins had offices in Ohio and president of company was there – it

was a temporary HQs Purchases from a forum do not rise to general PJ level, sales might because there may be an

opportunity to find that a seller avails itself of forum because getting revenue (Rosenberg v. Curtis)Helicopteros v. Hall (Blackmun)

Continuum between unrelated and giving rise, the more related it is, the less contacts you need (and vice versa—more contacts = less related)

General Jurisdiction deals with continuous & systematic axis versus gives rise/unrelatedo General PJ is Continuous/Systematic when it’s unrealatead to the claim

Court says no General PJ for Helicopteros in Texas because then anyone could sue Helicopteros for anything in TX which is unfair

←Constitutional Analysis – -Does one of the Pennoyer traditional bases apply? If yes, go to the Burnham split. Maybe presence is good on its own or maybe you need to do Shoe minimum contacts analysis. -If you do need to go to minimum contacts analysis:

(1) relevant contact between defendant and forum – (a) contact from purposeful availment and (b) forseeability – must be foreseeable that defendant could get sued there;

(2) fairness – (a) relatedness – Does plaintiff’s claim arise from defendant’s contact with forum? This is assessing general or specific jurisdiction, then (b) five fairness factors (burden on defendant) –

o (i) inconvenience for defendant/witnesses; (ii) state’s interest; (iii) plaintiff’s interest; (iv) interest in efficiency; (v) interstate interest in shared substantive policy (little opinion on (iv) and (v); Kulko – No jurisdiction because of interest in family harmony)

←← Statutory Analysis –

Always start with the statute! Every state has statute based on the Pennoyer traditional bases as well as statutes that let you go after

nonresidents (specific jurisdiction statutes, i.e., Hess motorist statutes, long-arm statutes) Statutes vary from state to state – some have laundry list, some just say jurisdiction over defendant

who “commits a tort in our state”

8

o Look for a fact pattern where you sell something in B and it blows up there. Did you commit a tort there? Some say yes because injury is there, others say no because your negligence was in state A and the statute doesn’t apply to you

o If you meet long-arm statute, you’ll usually have relatedness of claim Long-Arm statutes – Courts need it to authorize suits against out of state defendants. Could be specific

or have no limitation at all (consistent with state/US constitution)o If you’re NOT worried about efficiency, you’d want one without limitations because you don’t

care about stepping on others’ toes

In Rem and Quasi In Rem Jurisdiction Difference between in-rem and QIR is that with in rem, the suit itself is about who owns the property.

With QIR, dispute has nothing to do with who owns it Example – Pennoyer arose from an action after Mitchell v. Neff which was about breach of contract. It’s

a QIR suit that would have worked if property was attached o Property is attached to get jurisdiction over defendant – the property isn’t really in question

though For In Rem and QIR, court must seize property at the outset of the case First step – Statutory analysis – there’s an attachment statute in every state that allows seizure as basis

of jurisdiction for property which defendant owns. Next, Constitutional Test:← Shaffer v. Heitner (1977) (Justice Thurgood Marshall)

Can DE have jurisdiction over corporate officers because of their position in the DE company? Quasi-in-rem –Jurisdiction over the property and the property is unrelated to the claim (like in

Pennoyer’s first case) Court says this is in personam in disguise since claim has nothing to do with the property attached Issue is should we apply International Shoe to a quasi in rem case?

o YES – there is no purposeful availment in this case and jurisdiction would be unreasonable so defendant wins

o After this case, DE passed a statute giving jurisdiction to state over officers of a DE corporation In addition to seizing property at outset, you still need to show that defendant meets International Shoe

o The Constitutional test for in personam, in rem, and QIR is the same!

Internet & Long-Arm Statutes← Revell v. Lidov (5th Cir. 2002)

Combination case of “effects” test and Internet Approach (Zippo test) Zippo test – “sliding scale” to measure a website’s connection to the forum state – Purposeful

Availment Component Lidov’s article was posted on an internet site (not a newspaper) owned by Columbia Regarding Columbia having General PJ, they’re doing business with TX but not in TX – not substantial

contacts and falls short of the Perkins standard Effects Test – Harm not directed at Revell in TX because the defendants didn’t even know he was in TX.

Even if they did, harm still would not have been felt there← -Before we had Stream of Commerce Test (Asahi), Effects Test (Calder), and Contract test (Burger King), this gives us Zippo test to determine interactivity of a website

Passive to more interactive (making sales, etc.)← -Differing perspectives on PJ, maybe Internet needs its own International Shoe-like test← -Many foreign countries have a much broader PJ approach←

9

← III. Notice

10

← Governed by Federal Rule 4: Definition: Process consists of a summons and a copy of the complaint

o Summons is a symbol of court’s power over you – 4(a)(1) Service can be made by any NON-party who is at least age 18 To serve an individual, Rule 4(e). 4(e)(2) gives three alternatives:

o (A) Personal Serviceo (B) Substituted service at defendant’s dwelling (usual abode) AND you must serve someone of

suitable age (it does NOT say age 18) and discretion who resides thereo (C) Serve defendant’s agent

Remember 4(e)(1) - You can use methods for serving process allowed by state law. State where federal court sits AND where service is effected

To serve a business, 4(h)(1) – Serve an officer or managing or general agent – someone of significant responsibility given the job description

o 4(e)(1) applies here too. You can use state methods Waiver of service, 4(d). This is NOT service by mail, it’s waiver of service by mail

o Send to defendant process (complaint) and a waiver form and a SASE. If she returns it by 30 days, then we deem it waiver of service

o If she doesn’t mail it in 30 days, then we have to serve process formally with defendant paying the cost of doing so

o Benefit of waiver to defendant is it gives 60 (or 90 days outside of US) to file an answer Once the complaint is filed, you have 120 days to serve the defendant Statute of Limitations ends in some states when you file the complaint, in others when you serve the

defendanto It starts running at time of injury or knowledge of injury

Constitutional Requirements← Notice and service is providing notice, not as a means to get PJ over defendant, but to let defendant know that an action is being brought against him

Notice and PJ challenges come up together many times← Mullane v. Central Hanover Bank (1950) – Criteria for minimum notice

11

Beneficiaries must be notified to see if they have any objections to what is being done with the money Notice and PJ challenges come up together many times – Mullane raises both Says due process is being deprived because it’s beneficiaries’ property Constitutional Minimum shouldn’t depend on in rem/in personam Cost v. Benefit analysis – How much would it cost to provide better notice and what’s the benefit of the

added notice?o Notice must be reasonably calculated to apprise interested parties of the pendency of the

action. Means employed must be desirous of actually informing the absenteeo Publication is adequate when beneficiaries are unknown (cost of finding them is high and

benefit of them is small since many don’t have actual interest in trust)o Known Beneficiaries with Addresses must be served by mail or personally – PERSONAL SERVICE

IS THE MAX! If by mail, someone in the class of beneficiaries will likely respond and spread the word.

Cost of personal service on each beneficiary is too high Mail is adequate here, NOT in all/most cases If it’s one beneficiary, personal service is more appropriate

← Jones v. Flowers (2006) – If P becomes aware that notice was not received, she may have to pursue other means

Here, state became aware D wasn’t getting service because mail kept getting returned. Court required them to make service by other means

Statutory Requirements← National Dev. Co. v. Triad

Khashoggi has many houses and is served in NY. He says there can only be one “dwelling or usual place of abode” for service

Court says a person can have “two or more abodes provided each contains sufficient indicia of permanence”

Court looks to money he spent on refurbishing place, listed it as residence in bail application, and he was “present” at time of service

Previously district court said it’s not dwelling for service but he got actual service Circuit says NO. Actual notice does not suffice to cure a void service. Allowing receipt of summons to

suffice undermines Rule 4. What would be the point of following it?o Conversely if you follow Rule 4 and person doesn’t get the notice, it’s still proper serviceo Getting notice adds to the “present at time” point, it’s not entirely irrelevant it’s just not wholly

necessary The fact that you get actual notice does not mean that notice was done properly or constitutionally

← Notice is necessary for PJ. Since PJ or Subject Matter Judgment are the only things you can challenge collaterally, you challenge notice as it relates to PJ←

12

← IV. Subject Matter Jurisdiction – Federal vs. State Court

13

Federal courts have limited SMJ, they can only hear certain kinds of cases prescribed by Constitution and statute

Most cases (95%) filed in federal court can also be filed in state court since states have concurrent jurisdiction. For 5% of cases, federal courts have exclusive jurisdiction (bankruptcy, patent, securities, etc.)

o Expertise factor of certain issues SMJ can NEVER be given by consent of parties and can NEVER be waived (Rule 12(h)(3)) Plaintiff must plead that federal jurisdiction exists. Rule 8(a)(1) – short and plain statement of grounds

for court’s jurisdiction Courts have SMJ via Constitution and Statute

o Federal Question + 28 USC §1331o Diversity – “between citizens of different states” + 28 USC §1332

Statutory power is needed because only court created by Article III was SCOTUS

← Diversity Jurisdiction 28 USC §1332 – (1) A case between citizens of different states; (2) amount in controversy must exceed

$75K 25% of civil federal filings Founders created this to give an impartial federal forum to encourage out of state investment and

economic expansion Main purpose is to avoid local bias – federal forum is viewed as unbiased

o Critics say local bias has gone away with increased communications and it only affects the judge who presides, not the law applied

o Proponents highlight that some state judges are very biased and need to please local constituencies because they’re elected (subject to political whim), whereas federal judges are appointed and insulated. Also gives lawyers options and juries are drawn from wider areas

Thinking back to WorldWide Volkswagen, the Robinsons added the seller and distributor to the case. If the case were kept in state court, the local county had plaintiff-friendly juries. Since Robinsons were citizens of NY, keeping seller and distributor (also from NY) on the case destroys diversity and keeps the case in state court

← Complete Constitution – Article III § 2 - Judicial Power shall extend to all Cases, in Law and Equity, arising under

this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to Controversies between Citizens of different States

Statute – 28 USC § 1332(a)(1) - The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States;

← Strawbridge v. Curtis (1806) – Complete Diversity Rule Diversity only if ALL plaintiffs are of diverse citizenship from ALL defendants

14

There’s a need to control federal docket because a high percentage of cases were federal in nature. If either side has citizens of the same state, then the bias of state court argument is rendered moot

Strawbridge interprets the original statute, which read “the suit is between a citizen of a State where the suit is brought, and a citizen of another state”

o Statute was changed to just citizen of a state and citizen of another state Strawbridge interprets §1332, not the Constitution. So the Federal Interpleader Act, for example, which

requires minimal diversity (not complete) can still be Constitutional Despite saying essentially the same thing, Constitution and statute are interpreted differently since

Constitution has wider reaching effects. o Interpret Constitution broadly, interpret statute narrowly

←← Individual Citizenship← Mas v. Perry (1974)

Jean Paul Mas is from France, his wife is from Mississippi. They’re living in Louisiana and sue Perry, a voyeur, in Louisiana. He challenges diversity

Sentence after (a)(4) – alien considered citizen of State of domicile is added AFTER this caseo He has jurisdiction via (a)(2) - citizens of a State and citizens or subjects of a foreign state;

Citizenship = Domicile (NOT residence) = true, fixed, and permanent home and principle establishment, and to which he has the intention of returning

To change domicile, you must (1) take up residence/physical presence in a different domicile; (2) with intention to remain there permanently

o You only have one domicile at a timeo Robinsons in WWVW had intention to change domicile to AZ but they weren’t physically there,

so they’re citizens of NY stillo To determine intent to remain permanently, you look at all evidence – driver’s license, bank

accounts, gym membership, voting, etc.o Mrs. Mas was a citizen of Mississippi, so there’s diversity

Usually, the wife takes on the citizenship of her husband but here that doesn’t make sense because it would be weird to give her French citizenship. She doesn’t lose her US citizenship by marrying an alien and for diversity purposes, she hasn’t changed or domicile or state citizenship wither

o Under the new (a)(4) rule, would she take up Louisiana domicile? Citizenship is determined at the time the claim is FILED, otherwise, people may move during

trial. Lawyers use this rule to their advantage In this case, it’s desirable for federal court to have jurisdiction over both P’s claims since the district

court had jurisdiction of Mr. Mas’ action and the claims were interdependent← -If one P could not show diversity, Rule 21 gives district courts the authority to dismiss the non-diverse, non-indispensible parties from the suit← -In 1990, Congress amended §1332(a) to add a sentence after (4) providing that an alien admitted for permanent residence is deemed a citizen of the state she is domiciled for diversity purposes

15

7th Cir. said permanent resident alien is considered both an alien and a citizen of the state of the domicile

3rd Cir. said permanent resident alien is deemed to be a citizen of the state where domiciled and NOT an alien

If a US Citizen has dual citizenship with another country, most courts don’t allow foreign citizenship to create alienage jurisdiction where diversity wouldn’t exist

o Some courts interpret complete diversity to mean that if a party has dual citizenship, other wised must be diverse from BOTH citizenships

← -If a plaintiff tries to manufacture diversity by assigning her claim to someone else, courts must assess whether the assignment violates § 1359 – Collusion)

A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.

This applies to collusive creation of jurisdiction, not to a party properly changing their domicile following the steps in Mas

§1332(c)(2) says courts look to citizenship of decedent, minor, incompetent and not to citizenship of representative in determining diversity

← -Domestic Relations and Probate Exceptions – Federal courts refuse to hear domestic relations cases (divorce, alimony, child custody) – State courts are better suited

Narrow exceptions, doesn’t mean Federal Courts will never hear cases involving conduct of estate administrators (see Anna Nicole Smith case)

←←

←← Corporate Citizenship

(c)(1) Citizen of ANY state in which it has been incorporated and of THE state where it has its principle place of business (nerve center)

o A corporation could in theory be incorporated in multiple states but that’s rare Corporate citizenship used to be only for state of incorporation which defeats purpose of avoiding out of

state bias – (c)(1) remedied this← Randazzo v. Eagle-Pitcher Industries, Inc. (E.D.Pa. 1987)

Predisposition is that Federal courts DO NOT have jurisdiction so Rule 8 says P must show grounds why it exists. If he does not, court MUST dismiss the complaint

§1332(c)(1) says citizen of any state it has been incorporated and THE state where it has its PPOB. o P’s attorney wrote corporation is “organized and existing under the laws of Delaware with a

registered office in Philadelphia” Judge said this was insufficient and dismissed the complaint sua sponte because to consider the case

would be unconstitutional

16

← Hertz Co. v. Friend (2010) Hertz is being sued in state court by former employees. They removed it to federal court and Plaintiff

challenged it, saying they were citizens of California. Competing arguments – Hertz says their PPOB is in NJ because that’s where their HQs is (nerve center).

9th Circuit precedent it’s where the plurality of business occurs (muscle center) SCOTUS resolves the split and decides that PPOB is where corporation’s high officers direct, control,

and coordinate the corporation’s activities – the Nerve Center Reasoning – Corporate citizenship used to be based on shareholders’ citizenship where it was

incorporated incorporation + PPOB Nerve Center because it’s easier than gross income test and every business has a PPOB

o Public often considers a company’s main HQs its PPOBo Foolish for PPOB in a state where most of its business occurs just because a state has a big

populationo Easier to administer and promotes greater predictability (judicial economy, predictability,

uniformity)o Legislative history – Removed “Gross income” to change it to PPOB for clarity

Court admits its not perfect. If a corporation has its HQs in NY but does most of its business in NJ, there can still be out of state bias by trying in NY

o In view of necessity of having a clearer rule, there must be anomalies If alleged “nerve center” is really just a mail drop box, courts should instead take nerve center as place

of actual direction, control, and coordination Non-Corporate Business Citizenship

Partnerships and other non-incorporated business associations are not seen as entities separate from the people who run them

§1332(c)(1) does NOT apply to non-incorporated businesses – the business is the citizen of ALL states of which its members are citizens

o This means that the Teamsters Union is a citizen of all 50 states and can’t be brought into federal court on diversity matter alone

← Belleville Catering Co. v. Champaign Market Place, LLC (7th Cir. 2003) It was alleged that P is incorporated/PPOB/individual plaintiffs are from Missouri. Defendant is a

Delaware LLC with PPOB in Illinois. Defendant never researched the citizenship of every member of the LLC to determine its citizenship. During oral argument, it was determined that P was incorporated in Illinois rather than Missouri

Case dismissed because both sides have Illinois so no diversity First off, how can an LLC be incorporated in Delaware? You need to look at formal members of LLC and

determine their citizenship Next, this is an admitted Rule 11 violation because Plaintiff should have known its own state of

incorporation and thus shouldn’t have filed in federal court Answer should have pointed out that D’s lawyers had to find the legal status of an LLC. Trial court

should have inquired here as well D then says well since it already went to trial, can’t we just go with the judgment anyway? Judge

SLAMES this argument and says its unconstitutional – you can’t proceed once you know this fatal flaw Dismissed and costs for furtherance of the matter should be on attorneys who messed up

17

←← Amount in Controversy

Amount in controversy is not Constitutionally required. It’s there to show that federal courts are not small claims courts - $75K+ required is designed to cut down the number of cases filed (docket control)

Amount of controversy is determined by plaintiff in good faith, unless it appears to a legal certainty that claim is really for less than jurisdictional amount (like in a breach of contract case, statutory cap)

o It’s for claim alone, not claims + costs of litigationo In Mas, defendant challenged amount in controversy because Mr. Mas got 5K (less than

required 10K). Judgment amount is irrelevant as long as amount claimed by P is made in good faith

§1332(b) – If someone gets less than jurisdictional amount (75K), the court MAY order the plaintiff to pay defendant’s fees, as well as their own.

o If this was a case for removal, it doesn’t kick in for defendant’s side. The amount in controversy is where plaintiff originally filed the claim

Aggregation of Claims – When can a plaintiff add together separate claims to satisfy amount in controversy?

o Rule is that each P must meet amount in controversy vis a vis each Do One P v. One D – P can aggregate all claims to meet the requirement, even if they’re unrelated

legally or transactionally o Multiple Parties on either side – Aggregation generally not allowed, even if claims are related

transactionso For Joint claims, use the total value of the claim and the number of parties is irrelevant

This is because in a joint claim any one of the multiple tortfeasors could be held liable by himself

If what’s sought is injunctive relief, you have to monetize the benefit and costs to defendant – it either is above the 75K threshold, it gives jurisdiction

← Federal Question ← “Arising Under”

Constitution – Article III, §2 Statute – 28 USC §1331 – District court shall have original jurisdiction of all civil actions arising under…

o General FQ statute – there are specialized ones for antitrust, patent/trademark, etc. o States originally heard cases under federal law because they could ultimately be reviewed by

SCOTUS, §1331 wasn’t passed until 1875o No amount in controversy requirement under §1331 (there was, but it was abolished in 1980

because none of the specialized grants had it← Louisville & Nashville RR v. Mottley (1908)

18

RR refused to honor passes after statute against the passes was passed Court here looks to the jurisdictional issue – what is “arising under” Court says there’s no FQJ because “arising under” part would be a defense, not in plaintiff’s complaint

o Complaint was for a breach of contract which is a state law claim. The federal issue comes up when the plaintiff is listing potential defenses (they’ll say the Congressional law bans recognition of the passes)

Well-Pleaded Complaint Rule: Only looking at factors/elements to address the claim that the plaintiff had. Any other issues are not well pled

o Any counterclaim is part of D’s answer and NOT part of complaint. If P’s claim doesn’t invoke FQJ, counterclaim arising under federal law will not provide FQJ

o Ask yourself – Is plaintiff enforcing a right under federal law? Proponents say it lets courts determine from outset (by the complaint) whether or not they have SMJ.

Efficiency argument o Opponents say it doesn’t funnel federal issues to federal court – also hard to apply for

declaratory judgments Mottley eventually got back into federal court when SCOTUS reviewed it but this was through §1257,

not §1331. o §1257 allows for appellate jurisdiction over state court judgments in which a federal statute or

constitutional provision is drawn in question Well-pleaded complaint rule is solely an interpretation of §1331, not Constitution

Just like Complete Diversity rule for §1332– Constitution interpreted more broadly than statute

← -Declaratory judgments raise well-pleaded complaint problems. Declaratory judgments are remedies where the court declares the relative rights between the parties

Skelly Oil v. Phillips Petroleum –Declaratory Judgments are proper under Federal Declaratory Judgment Act ONLY if supported by an independent basis of jurisdiction

Unless a coercive sit would arise under federal law, a declaratory judgment case cannot invoke FQJ Declaratory Judgment Act was not designed to be a loophole to well-pleaded complaint rule

←← “Federal Law”

To invoke FQJ, federal issue must be part of a well-pleaded complaint and must also be a sufficiently central part of the dispute

o Statutory grant is narrower than Constitutional grant which requires that federal law only be an ingredient in the case

These are cases where courts uphold arising-under jurisdiction where the federal law does not create the right to sue but the plaintiff, in order to establish her state law claim, must prove a proposition of federal law.

← Grable & Sons v. Darue Engineering (2005) Grable’s property was seized by IRS because of back taxes. He had right to redeem property for 180

days. He didn’t, so it went to Darue. Grable brought a quiet title action in state court claiming Darue’s title was invalid because IRS failed to notify Grable of its seizure in the proper manner. Dartue removed the case as presenting a federal question because claim depended on interpretation of notice statute in federal tax law

19

Court then discusses history of similar actions American Well Works (1916) – State trade libel law claim. Holmes - A suit arises under the law that

creates the cause of action Smith v. KC Title & Trust (1921) – Corporate Fund Investment is illegal according to Missouri banking

law because the federal Farm Loan act was unconstitutionalo Looks like American Well Works because it’s a state claim, no federal cause of action, federal

issue has to be raised to support the claimo Nevertheless, court says they have SMJ because the case directly involved the construction of a

federal act and the Constitution Too many federal laws that embed themselves in state statutes that not giving SMJ

would be funneling too many federal issues to state courts Moore (1934) – State statute incorporated part of Federal Safety Appliance Act

o Court directly contradicts Smith as the court did not grand FQJ, saying FSAA was not sufficient in State law

In Grable, the claim is Quiet Title and the Federal issue is the tax statute providing for certain kinds of notice – court takes cert to decide circuit split based on Merrell Dow (1986)

Merrell Dow – Claim was negligence per se; federal issue was mislabeling in FDCA Court said (5:4) No FQJ because FDCA did not create a private cause of action. The tort law gave cause of action and we combine it with federal statute to get negligence per se. They’re interpreting it as a matter of law then applying it to the facts of the case. No enforcement because there’s no private cause of action

o Court says if no private cause of action, no FQJ. Courts are then split as to whether Merrell Dow is dispositive or only a factor in evaluating FQJ

Back to Grable, courts have been reading Merrell Dow too broadly but we still want to be careful with what gets into federal court.

Rule: Does a state law claim necessarily raise a disputed and substantial federal issue that does not disturb federal/state responsibilities

Grable Merrell DowNecessarily Notice from tax statute is

dispositive issueThere were other grounds besides FDCA to show company was negligent

Disputed Dispute as to federal law violation

Dispute as to federal law violation

Substantial (Factors: Did Congress create a private cause of action? Does it go to government interest)?

Tax laws are important to national interest, notice is important when seizing property

FDCA is not as important to the prevailing national interest as tax laws

Federal/State Responsibility (Did Congress intend for this kind of issue to be funneled into federal court?)

Quiet Title claims don’t funnel cases into federal court as much as negligence claims

If this were a federal question, many more negligence matters would funnel into federal court

Thomas in a concurring opinion says jurisdictional rules should be more clear and here they are not. He’d be willing to look more expressly at the Holmes rule in American Well Works

←

← Removal When a case is filed, P decides where to file it Removal and Remand are first exceptions to the rule that the case stays where the P files it

20

o Removal is whether D has a right to remove the case from state to federal court D doesn’t ask to remove, they just remove. If it’s improper, federal court remands the case to state

court All Ds must agree to remove. Applies only to Ds who have been served with process in the state case General Rule - Removal if case invokes Federal SMJ. Exception – You cannot remove a diversity case if

any defendant is a citizen of the forumo If it’s FQJ though, you’re fine. It can be removedo For a hybrid case (FQJ and Diversity), the in state defendant limitation is only for pure diversity

cases so a hybrid case IS removable even by a defendant who is a citizen of the forum Venue Provision – You can only remove to federal district that embraces the state court where it sits When removing:

o (1) look if the claim presents diversity or federal question SMJ §1441 – Action in which district courts of US have original jurisdiction

o (2) Timing §1446(b) – Defendant has 30 days to remove after they’re serviced with process that

case can be removed Time doesn’t start until service is effected

o (3) Where to remove? §1441(a) – Removed by D to district court for the district and division embracing the

place where such action is pending You can’t remove to wherever you want – this is the best the system can do to

keep P’s prerogativeo You can only remove for diversity if there’s no in-state bias - §1441(b) Removal only if none of

the defendants are citizens of the state in which the action is brought For remanding - §1447(c) – 30 days for procedural problems to remand back to state court so a case

doesn’t process too far along in federal courto If it’s LACK of SMJ then it can be remanded whenever o Remand is only after the case has been removed. You can’t remand if you start in federal

court! Court has some discretion when complaints are amended if joinder would destroy diversity/SMJ -

§1447(e) – Court may deny joinder or permit joinder and remand to state courtso Courts will look to see if it’s a state law claim (maybe state has more of an interest)o They’ll see how relevant the party to be joined is to the claim. If it’s just to defeat diversity

then the relationship of both defendants to the claim should be looked ato How far along is the case? Timing is an issue

21

Plaintiffs cannot remove, only defendants can P may try to thwart removal by saying her claim isn’t above 75K. Federal court must assess situation

as it existed at removal. If original claim was worth more than 75K, removal was proper. P can’t defeat jurisdiction by scaling back the claim

In WWVW, Seaway and WWVW challenged PJ because Audi was paying and wanted to get WWVW and Seaway out of the case to remove it to federal court

o This worked in 1980 but would not now because §1446(b) was amended in 1988 to prohibit removal on the basis of diversity jurisdiction than 1 year after commencement of the action.

← Caterpillar v. Lewis (1996) Lewis (KY) sues Caterpillar (DE/IL) and Whayne (KY) for state claims in state court. Liberty Mutual (MA)

joins and also sues defendants After Lewis settles with Whayne, Caterpillar seeks removal

o Lewis’ lawyers should have waited past the one year mark before settling Lewis files motion to remand because Liberty still has their claim against Whayne

o SCOTUS will not address whether or not complete diversity requires looking at All Ps and All Ds or just who has claims against one another

Court doesn’t remand and defendant wins. Lewis appeals SCOTUS said that since there was diversity at the time of judgment, the judgment can stand

o Court dismisses Grubbs and Finn – Different because in those cases defendant was appealing saying they removed it incorrectly; here the plaintiff remanded it.

Once a diversity case has been tried in federal court, considerations of finality, efficiency, and economy become overwhelming.

o Requiring dismissal after years of litigation would be a wasteful burdeno Jurisdictional defect was remedied before trial and to wipe out jurisdiction would pose an

exorbitant costo Classic Efficiency vs. fairness – SCOTUS chose efficiency

When court denied remand, Lewis didn’t appeal right away because basic appellate rule states you need a final judgment to appeal. Denying a remand motion is the classic non-final judgment

In DICTA After removal, Caterpillar brings a claim against Wilson (KY) which is fine because once SMJ is established between P and D, questions concerning impleader are whether there is jurisdiction between defendant and third party defendant

o Court doesn’t want Ps to play the game of when they join to determine when there is SMJ and when there’s not. We don’t want Ps to avoid §1332

←

22

← V: Venue and Transfer Venue determines where within a court system a case can be brought. Primarily a matter of

convenience and efficiencyo Determined by statute – no Constitutional Componento PJ says state has authority over you – venue allows you to pick where within the state

← Venue & Transfer ← Venue

Both PJ and Venue restrictions exist side by side in Federal Court and both must be met 94 Federal Districts all within state boundaries except for D. Wyo which has parts of Yellowstone in ID

and MT Federal General Venue Statute – 28 USC §1391

o Broken down into (a) Diversity of Citizenship ONLY, (b) non-diversity Qualifies (a) and (b) with except as provided by law because there are specific statutes

based on certain issues You can sue in any district where defendant resides, if all reside in same state.

Meaning if it’s corporate (Inc: NY and PPOB NJ) and individual (NY) defendants, NJ is proper venue since they both reside in same state (NY) – BUT it’s unlikely court will have PJ over the individual defendant in NJ

o (c) defines corporate defendant residence – any district in which it is subject to PJ at the time the action is commenced.

No provision for individual defendants This is applied to non-incorporated associations

o Courts hold that “resides” is synonymous with domicile for venue purposes o Residence is for Venue, Citizenship is for SMJo Main difference between (a) and (b) is fallback provision of (3) – not known why Congress

separated diversity and non-diversity matters Maybe (b)(3) applies only where defendant is physically present and provision cannot

be used where D is absent but otherwise subject to jurisdiction on basis of his contacts Maybe (a)(3) excludes cases where the sole basis for jurisdiction is in-state service (like

Burnham) because in such a case the defendant is not subject to PJ at the time the action is commenced (complaint filed)

o §1391 not for removed cases because it can only be removed to the federal court embracing the place where such an action is pending

o (d) – An alien can be sued in any district. It doesn’t matter for venue purposes if he was admitted for permanent residence

(§1332(a)-holding you’re deemed a citizen of the state where your domiciled) because venue is about convenience, not out-of-state bias rationale that we have for PJ

← Bates v. C & S Adjusters, Inc. (2d Cir. 1992)

23

Bates incurred debt while a resident of W.D. Penn, creditor also had its PPOB there. Bates moved to NY and when C & S mailed a collection notice to him, USPS fwd it to his new address in NY. Bates alleges violations of the Fair Debt Collection Practices act and commenced the action in W.D.N.Y.

Issue is whether venue exists in a district in which the debtor resides and to which a bill collector’s demand for payment was forwarded

§1391(b)(2) says an action can be brought in a judicial district in which a substantial part of the events giving rise to the claim occurred

Court says venue proper in W.D.N.Y o This isn’t about purposeful availment (PJ), it’s about venue! o Amendment used to say “where claim arose”. Now it’s where things happened – there can be

more than one venue Collection agency sends letters so they will be received. Fair Debt Collections Practices Act is designed

to protect consumers from abusive debt practices. Harm is felt when you receive the letter, which was done in W.D.N.Y.

o C & S could have said DO NOT FORWARD on envelope Under court’s rationale, if Bates got the letter in NY and brought it with him on a trip to California,

venue in California might be appropriate, but it certainly wouldn’t be convenient← Transfer

Removal is change of forum from state to federal court Transfer is moving to a more geographically convenient location You can only remand a case from federal to state court if it started in state court. If there’s no SMJ,

case can be dismissed A state court that concludes the action before it ought to be litigated in another state cannot transfer

the case but can dismiss it under forum non conveniens §1404, §1406 authorize transfer from one federal district to another – federal courts do this, state

courts can’t transfer to other stateso §1404 – Proper Venueo §1406 – Transferor Court is an improper venueo §§1404(a), 1406 (a) allow transfer to any district where the suit might have been brought –

where venue and PJ would be proper, not merely what defendant consents to Good way to test transfer and venue/PJ Goldlawr – If a court lacks PJ and Venue, it can still transfer so as to remove any

obstacles to adjudication Forum selection clauses are NOT dispositive of where to transfer a case Choice of Law for a Federal Court – If there’s no federal statute on point, apply the state law of the state

in which the court sitso When a case is transferred under §1404(a), transfer is simply a change in courtrooms and

should not change the law applied. Transferor court law should still apply If the law changed, defendants might use this to their advantage –

24

o Doesn’t apply to §1406 since venue wasn’t proper to begin with §1404(a) says in deciding whether to transfer, court should consider convenience of parties/witnesses

and interest of justice.o District court has wide distraction whether to grant a change of venue

←

← Forum Non Conveniens Different from transfer. This is where court dismisses because there’s another court that’s the center of

gravityo Dismiss because transfer is legally impossible (in a different judicial sysyem)

← Piper Aircraft Co. v. Reyno (1981) (1) Court appointed adminstratix (Reyno) brings suit in California state court for Scottish citizens

against US Manufacturers Piper (PA) and Hartzell (Ohio). She files in US because strict liability laws are more favorable to her than Scottish laws

(2) Piper removed to Federal Court (C.D. Cal). Hartzell tried to dismiss which court technically granted but decided not to because they’re amenable to process in PA, where they can be served with process

(3) Piper then transfers to M.D. PA under §1404(a) for convenience of parties/witnesseso M.D. PA is more efficient because now Hartzell can come back in, Piper and witnesses are in PA

Choice of Law – CA uses different analysis than PA. o CA uses “governmental interests” test – If it’s CA choice of law, you apply PA substantive lawo PA uses “significant contacts” test – If it’s PA choice of law, you apply Scottish substantive lawo Plaintiff deliberately chose to file in CA so as to get their choice of law and thus, US lawo When transferring a case, CA choice of law still governs (= PA substantive law). If you start in

the wrong place, choice of law rules do NOT follow you For Hartzell, CA choice of law doesn’t follow because their transfer is like §1406 where

original forum was wrong – they get PA Choice of Law = Scottish substantive law This allows forum shopping provided forum is proper to being with

Convenience issue comes into play for Forum Non Conveniens because there’s another case going on in Scotland against the pilot

o Defendants could have raised this before transferring but they didn’t because the analysis changes. In CA, Scottish law wouldn’t have applied so it’s less confusing and the court may say PA is a convenient forum

o First question asked in FNC analysis is “Is there an alternative forum?” Forum must provide a remedy – doesn’t have to be the best remedy

If it doesn’t provide a remedy, then this may have substantial weight to keep case in forum

(4) Dismissed under Forum Non Conveniens

25

o Appellate court reversed dismissal because they said whenever alternative law is less favorable to plaintiff, dismissal is not appropriate

FNC must retain flexibility as each case turns on its facts – it can’t just be inconvenient because foreign law is unfavorable to P

o SCOTUS rejects that because if so, every foreign P would try to have the case heard in US FNC Doctrine is court made law! Before §§1404, 1406, there was no transfer. Because courts

couldn’t transfer, they’d dismiss if it made no sense for them to have the case. Now that we have transfer, FNC is only used if case belongs in front of a different sovereign

Gilbert Analysis – When an alternative forum has jurisdiction and [Private factors] when trial in chosen forum would be oppressive to defendant over convenience to plaintiff OR [Public factors] when chosen forum is inappropriate because of court’s admin/legal problems, court can dismiss the case

o Private Factors – (1) Witnesses/evidence in Scotland, (2) Joinder – efficient to have all defendants in one case in Scotland and more fair because defendants can’t implead third-party Scottish defendants here and we don’t want inconsistent judgments , (3) Plaintiffs are actually Scottish citizens

o Public Factors – (1) PA law applies to Piper, Scottish to Hartzell = confusing for jury/court, (2) Scottish interest in litigating case, (3) Citizen’s time and PA jury means costs with US and citizens

Courts have a lot of leeway to settle up with defendants – they’ll tell them we’ll dismiss case if you send witnesses/documents to Scotland and waive Statute of Limitations

US is so attractive to foreign plaintiffs because: (1) 44 states offer strict liability, (2) P gets 50 jurisdictions to chose from with their own choice of law rules, (3) Jury trials, (4) Contingent attorneys fees and losers don’t pay winner’s attorneys fees, (5) Extensive discovery

←

← Raising Jurisdictional Challenges Courts impose strict limits as to how and when PJ or venue defense can be raised SMJ can NEVER be waived Two ways to challenge PJ:

o Special appearance – appearing just to challenge PJo Rule 12 – No defense or objection is waived by joining it with one or more other defenses or

objections in a responsive pleading/motion Some states allow Limited Appearance to challenge in rem and QIR – appear without facing liability

beyond the value of the attached property Rule 12(b) permits D to raise any of seven defenses in responsive pleading or by motion

o Pleading (Answer) – Sets forth factual and legal contentions of partieso Motions – asking the court to order something now

FNC is NOT raised under 12(b)(3) and thus is not waived if you don’t assert it in first Rule 12 response. FNC dismissal is not based upon impropriety of venue in original forum

You’d file a motion first because to file an answer is more timely/costly – if you know there’s no PJ, you’d want to motion for it and get rid of it right away

o Also, it gives defendant more timeo A 12(e) motion for more definite statement gives P time to amend complaint then D has 14

days to respond (12(a)(4)(B))

26

← Rule 12 Exercises Motion must be made before pleading. Once you file an answer, there are no more 12(b) motions to

makeo 12(b)(2)-(5) motions need to be moved on before an answer or brought up in an answer within

21 days you effectively waive them (12(h)(1)) – efficiency, fairness, and accuracy argument – they’re wrong from outset or never

You waive defense when you fail to include it in a responsive pleading or in amendment allowed by 15(a)(1) – allows amendment 21 days after service

You can’t amend a motion, you can amend pleadings If you file a 12(e) motion for a more definite statement, the clock doesn’t start anew – Rule 12(g)(2) still

applies – A party that makes a motion under Rule 12 must not make another motion under this rule raising a defense that was available to the party

o When you file a 12(e) motion, the 12(b)(2) motion was still available – even if complaint is vague, best bet is to throw all available motions into one

You can bring a transfer of venue §1404 then seek lack of PJ (b)(2), but you still have 21 days to file, it doesn’t extend time limit

o If it was a §1406 transfer for improper venue, that’s essentially the same thing as 12(b)(3) motion and courts would interpret them as same thing

12(h)(3) is opposite from 12(h)(1) – you NEVER waive right to challenge SMJ 12(h)(2) is for the other motions 12(b)(6), (7) – once trial’s over, you’ve lost opportunity to raise them

← Direct and Collateral Attacks on PJ Direct Attack – You make an appearance in foreign court to object to PJ

o Pro: If there’s no PJ, case dismissed. If not, you can always challenge case on its meritso Con: Lawyer has to learn foreign law fast, if you lose you stay for whole trialo If you lose direct attack, most courts do NOT allow interrogatory appeal, only allow appellate

review after judgment (exceptions in WWVW, Asahi, Burnham) Collateral Attack – You don’t challenge directly so foreign court imposes a default judgment on you.

When P wants to enforce judgment, you argue that foreign judgment isn’t entitled to full faith and credit because original court lacked PJ

o Pro: Litigate at home, no travel costso Con: P may enforce anywhere you have property, you can only challenge jurisdiction so if you

lose, you can’t challenge case on the merits Decision to attack directly or collaterally is a strategic decision

o If a client has a weak case – you’d challenge collaterally because you’re going to lose anyway, you might as well minimize costs and lose at home

o If you have a strong case – you’d challenge directly because if you lose PJ, you can still fight case on its merits

← Baldwin v. Iowa State Traveling Men’s Association (1931) Case was decided before FRCP Baldwin sued D in Missouri, D directly challenges PJ saying they have no presence in Missouri and

person served was not an agent for service. Court refused to dismiss – winds up in a default judgmento They originally challenged service then challenged PJ – this wouldn’t be allowed under FRCP

since they would have filed a 12(b)(4) motion Baldwin then moved to enforce judgment in Iowa. D asserted same PJ defense and court ruled for

defendant which was affirmed by Circuit Courto Baldwin objects to collateral attack since it was a retrial of issue from first suit

If you disagree with court’s determination of PJ after a direct attack, you appeal it, not challenge it collaterally; OR don’t challenge directly and raise it collaterally – it’s one or the other

Note: the amount you’d get in a default judgment is the amount alleged in Rule 8(a)(3)← Challenging SMJ

Some parties raise SMJ challenges strategically – P if the lose on the merits, D after state Statute of Limitations runs

You can’t raise lack of SMJ in a collateral suit – courts have jurisdiction to decide their own jurisdiction27

VI. Pleadings & Judgments Based on the Pleadings

28

Pleadings are documents filed by litigants, setting forth claims/defenses Response to pleading is an answer Functions of pleadings: (1) Puts parties on notice; (2) stating facts each party believes it can prove; (3)

narrowing scope of issues at trial; (4) providing a quick method for resolving bad claims/defenses Pleading requirements are a gatekeeper to judicial machinery Here we’re focused on 8(a)(2) – A short and plain statement of claim showing that pleader is entitled to

relief We have notice pleading. Before:

o Common Law Pleading – Writs back and forth no discovery. If wrong writ then case gone – too procedural

o Code – development of facts at discovery, pleading of factso FRCP – What we have now – have the law right and the “facts” right – they say “short and plain

statement of claim”

← The Complaint Rule 8(a) – (1) Proper grounds for jurisdiction

o (3) relief sought – Demand doesn’t limit plaintiff’s recovery and you can list “amount to be shown at trial”

This is different from amount in controversy requirement for diversity SMJ – you can say 75K+ for SMJ and “amount to be shown at trial” in pleading

There can be equitable relief like injunction, special performance Form – Rule 10 Rule 8(a)(2) – “Short and Plain Statement of the claim” showing that pleader is entitled to relief

o Your complaint must be legally and factually sufficient to survive 12(b)(6) motion for failure to state a claim

Legal Sufficiency – Does plaintiff have legal right to state a claim (missing an element)o If everything P said is true, would law provide remedy? If no, case it usually dismissed without

prejudice (you can amend it)o A lawyer suing for loss of consortium for unmarried lesbians may do this intentionally then

appeal the dismissal saying it should be extended to lesbianso If pleadings show no factual dispute, party could move for summary judgment and go beyond

pleadings to look at evidence (12(d) motion) Rationale is that discovery is for fact finding. If you required facts up front, why bother having

discovery

29

Factual Sufficiency – Biggest gap between Code and FRCP Pleading – “sufficient detail”o Code – required stating of ultimate facts but not in too much detail (evidence) or to little detail

(conclusions of law). Precedents were available in either direction, making a lawyer’s job a no-win

o Federal Rules - 8(a)(2) avoids “facts” altogether. ← Dioguardi v. Durning (2d Cir. 1944)

Italian immigrant disclosed claims which are valid. He should have his day in court P should get lawyer to help him otherwise it’s likely he’ll lose on Summary Judgment Goal is to determine case on merits, not penalize litigants for procedural error

o Affirms notice pleading← Bell Atlantic Corp. v. Twombly (2007)

Twombly wants to show an antitrust violation on the part of local phone carriers. To do so, they must show conscious parallelism (Ds aware of each other’s conduct and engaged in activities not to complete themselves) and an agreement among them – they say agreements are to be inferred from conduct

Factual issue – What do plaintiffs have to plead? They allege conscious parallelism plus agreement (upon “information and belief”) but court says this isn’t enough

o 12(b)(6) is to assume all factual allegations are true and are to be read in the light most favorable to plaintiff

Issue is what’s the difference between a factual allegation and a legal conclusion?o Inference of agreement is a legal conclusiono Courts would have wanted a phone call, email, something to show conspiracy – but this is tough

to do before discovery! Court differentiates conscious parallelism from simply pleading negligence in a car accident because in

an accident, something is inherently wrong. Conscious parallelism with nothing else is perfectly legal unless they agreed to do it

o Court says draw plausible inferences This led to much more stringent interpretation of complaints. Courts get to decide if it’s a factual

allegation or a legal conclusion – pro-defendant Court says you can’t just say you’ll figure out facts in discovery because discovery is costly and may

lead the defendants to settle when they shouldn’t have to This holding is contrary to Conley v. Gibson which said only dismiss complaint when its beyond doubt

that plaintiff can prove no set of facts in support of claim. o Stevens Dissent says pleadings are for giving notice, goal of pleadings is to keep litigants in

court← Ashcroft v. Iqbal (2009)

Iqbal was Muslim Pakistani who was detained after 9/11. He sued Ashcroft and Mueller saying they adopted policies designed to get him because of his race, religion

30

Court doesn’t accept this pleading – they say draw plausible inferences. You can infer FBI arrested Arabs after 9/11 – policy was approved but intent behind it cannot be determined if its to discriminate or promote national security

o Under higher standards, Ps never get a chance to gather evidence to see if D did something wrong

o Discovery is expensive – you don’t get there automatically Immunity Issue – We don’t want a flood of claims against law enforcement because we don’t want to

interfere with what they’re doing to keep us safeo Immunity from suit – Person can’t be sued because we don’t want them going through

time/expense of discovery when they have a job to do for the common goodo Immunity from Liability – You can sue but there’s a higher standard of liability. No liability for

something that’s reasonable given your job because we don’t want to second-guess you This case is immunity from suit because people have jobs to do P says Twombly was just for antitrust – Court says no, it’s across the board P says can’t you just limit discovery against public officials – Court says no P says intent can always be alleged generally, as in Rule 9(b) – Court says no – this is an 8(a)(2) case,

not 9(b)← Factual sufficiency is not as cut and dry as legal sufficiency

This gives more discretion to courts = lack of consistency May not be more efficient because it will result in more 12(b)(6) claims Accuracy depends on your perspective (P or D)

←← Rule 9 lists exceptions to liberal pleading of 8(a)(2). Calls for a heightened pleading standard

As courts became more crowded, some courts required higher pleading standard for cases NOT listed in Rule 9

← Leatherman v. Tarrant County (1993) Issue – Whether a federal court may apply a heightened pleading standard in civil rights cases (not

listed in Rule 9(b)) in which you have to plead with “particularity” 9(b) requires heightened pleading in fraud or mistake and rule meant what it said This case is about immunity from liability - municipalities can be sued under the statute but it can’t be

held liable unless a municipal policy/custom caused the injury No heightened pleading standard for cases not listed in Rule 9 but the given claim may require more of

a factual allegation, given the nature of the claim

← Inconsistent Facts/Alternative Theories

31

Rule 8(d)(2) – A party may set out 2 or more statements of a claim or defense alternatively or hypothetically. Pleading is sufficient if any statement/defense is sufficient

← McCormick v. Kopmann (Ill. Ct. App. 1959) Wife brings claim for husband’s death. She sues the driver saying he negligently crossed the line and

husband wasn’t contributorily negligent. She alternatively sues bar owner saying they got husband drunk.

o Here they make P plead no contributory negligence. In most cases, contributory negligence is used as a defense

Driver moves to dismiss saying the complaints are fatally repugnant because if the count against the bar owner is true, then husband had to have been contributorily negligent

Court says rules allow alterative pleadings because if plaintiff doesn’t know what the facts are, this is how you find out – let the jury decide

o Driver (Kopmann) is right in saying complaints are inconsistent but it doesn’t mattero It’s allowed when facts are NOT known. Here, the guy who would know is deado Rule 11 requires a reasonable inquiry under the circumstances

If the rule didn’t allow alternative pleadings, one who tried it would run the risk of having his case dismissed

It’s to plaintiff’s advantage to have alternative theories in same case since jury is likely to find it’s one or the other. If you break it apart in two cases, you don’t have two alternatives and you could get opposite jury conclusions and P loses both times

←← Voluntary Dismissal

A plaintiff can dismiss the case via Rule 41(a) Voluntary dismissals are typically without prejudice, meaning P can refile Court focuses on a complex set of factors in determining wither to allow P to dismiss without prejudice –

prejudice to be suffered by D if P refiles, delay, lack of diligence by the P, extent to which case has progressed, adequacy of P’s explanation for need to dismiss

←← Involuntary Dismissal

Involuntary dismissals are usually when P has done something wrong according to the court (Rule 41(b))

o Dismissal under this rule except for lack of jurisdiction, improper venue, or failure to join a party operates as adjudication on the merits

Adjudication on merits = with prejudice “merits” mean we have decided the underlying case – party had opportunity to get to

the merits but blew ito Courts can say it’s without prejudice but that’s no the default rule

Court can order this sua sponte – Link v. Wabash R. Co. (1962)

32

o Case lingered on, P’s attorney didn’t appear at pretrialo Issue is then that client is punished – Black says its unfair to the client but the majority said he

chose his attorney voluntarily and Plaintiff should know something’s up when the case never goes to trial

o Lawyers can be reprimanded under Rule 11 and can be sued for malpractice Rule 83 allows district courts to adopt local rules providing for involuntary dismissal if no action is

shown of record within a stated time – judge’s discretion

←

← Defendant’s Options – Challenging the Complaint – Motions A rule 12(b)(6) motion tests legal sufficiency and factual sufficiency of claim Could also bring a motion for Summary Judgment under Rule 56 Also for a more definite statement under Rule 12(e) NOT for failure to state a claim Move to strike under Rule 12(f) – Claim for relief not available as a matter of law Often times these motions delay the filing of an answer

← Defendant’s Options – Responding to the Complaint – Answer Admitting, Denying or saying you don’t have enough information to admit/deny every specific claim

(Rule 8(b)) Allegations not denied are deemed to be admitted. If an allegation is denied, it’s ”joined” and can be

adjudicated o Doing nothing = admissiono Lack of information is deemed a denial (8(b)(5)) only to be done when Defendant doesn’t have

access to information/it’s not public Rule 8(2)(b) – A denial must fairly respond to the substance of the allegation – keep it simple

o Don’t plead contrary facts and don’t say “I did not negligently drive my car and ride over the plaintiff” because it’s implied you drove negligently at another time

← Affirmative Defenses 8(c)(1) lists 19 affirmative defenses that are NOT exhaustive Affirmative Defenses vs. Elements of a Claim Question becomes how do you determine if an issue falls on P’s burden to plead (in complaint) or on D’s

burden (affirmative defense in answer)

33

Burden of proof = burden of pleading, produce, persuadeo Element of cause of action (i.e., for negligence it’s duty, breach, causation, etc.) is burden for P.

What about P’s contributory negligence?o Substantive law in each state determines who has the burden of pleading

Rule of Thumb – A plaintiff prevails “if” she shows XYZ, “unless” ABCo “ifs” are P’s claim, “unlesses” are affirmative defenses with burden on Do Burden of production is on who needs to come forward with evidence to prove the claim –

pleading/production are usually aligned State legislatures decide these as policy matters – factors include (1) who has positive vs. negative

burden/what’s the default scenario; (2) burden of pleading vs. burden of production – who would be in better position to allege something given who has that evidence

o For subjective intent like immunity from suit/liability, it’s D’s burden to plead Affirmative Defenses vs. Denials

o We allow inconsistent pleadings for answer as well – you can both deny and provide an affirmative defense

o O owns land, D came on land and dug a hole for wiring. P says trespass and alleges all elements. D denies and at trial wants to provide evidence of an easement between them and the former landowner

o P objected to D’s evidence at trial because she hadn’t seen it in the pleadingso Appellate court said you should have alleged it as an affirmative defense in answer. When you

fail to allege it, you waive it Easement injects new matter into the suit and our system is one of notice pleading –

you must give notice of defenses← Default Judgments

Failing to respond = default. Default judgment then gets you money/relief based on the defaulto Clash of policies between not wanting to subject the P to an unnecessary delay but to decide

cases on merits instead of technicalities Default; Default Judgment - Rule 55 Court has preference for determining the case on its merits Most courts don’t allow to set aside a default for lawyer’s negligence unless it’s gross/egregious

behavior← Summary of Defendant’s options:

Do nothing (default/default judgment), make a motion, file an answer, counterclaim against P and cross-claim against other Ds

← Amendments

34

Rule 15 Rules limit to what degree Ps and Ds can change their pleadings You can amend within 21 days of serving the pleading; after that you need other party’s consent or

court’s leave (Given with justice so requires)o Court looks to undue delay, bad faith/motive, repeated failure to cure deficiencies in previous

amendment, undue prejudice to opposing partyo No time limit but the longer you wait to amend the more prejudice there is for the other party

to claim Example of Aquaslide where party sued a slide manufacturer who admitted they were the manufacturer

and denied everything else. After the SoL ran, they discovered they weren’t the manufacturer and sought to amend.

o Court looks to why they got it wrong in the first place (due diligence), prejudice re. SoL – ultimately decided to allow the amendment because it’s hard to see how you can proceed when you’re suing the wrong person

o Standard for allowing amendment is more liberal so there’s a bigger burden on the party opposing amendment

Reasons for amendment – Fairness, Accuracy (decision on merits), Efficiency (case will be longer though)

o We count accuracy/fairness more than efficiency in the first half of the case, then we care about efficiency/finality more

← Rule 15(c) – Relation Back of Amendments Statute of Limitations is an Affirmative Defense Rule 15(c) lists when an amendment to a pleading relates back to the date of the original pleading

(meaning an exception for when SoL runs)o (1)(B) – Amendment asserts claim/defense that arose out of the conduct/transaction/occurrence

in original pleadingo Based on premise of notice pleading that the amendment isn’t a big deal because the

defendant has been given all the notice required for SoL This shows a clash with the SoL – SoL embodies a policy that after a certain period, a D should be

assured he won’t be liable for something. This goal may be undermined if P is permitted to amend her complaint to add a new claim after SoL has ran

o Balance between liberal amendment and strict SoL – accuracy/fairness vs. efficiency 15(c)(1)(C) allows for amendment when the party changes after the SoL but the original party had

reason to know (like if you sue Fortune magazine but their owner is Time – Time knew it should have been the party so there’s no injustice in allowing amendment)

← Marsh v. Coleman Company (D. Kan. 1991) Marsh fired from Coleman company and originally sued for age discrimination, breach of contract. He

seeks to amend complaint to add fraud claim after SoL The issue is does the fraud claim arise out of the same occurrence – firing him The big picture is notice – his amendment is denied because the initial pleading contained things

relating to his firing in 1988. The fraud allegation refers to events in 1984-85o A reasonable person would not have expected that by reading original complaint that promises

made to P three years before would be called into questiono No notice for D to prepare things on three year old acts

35

← Ethical Limitations – Rule 11 & Others Rule 11 lays out your professional responsibility to the court, opponent, other parties – raised at any

time for any paper, not just complaint Each state’s bar has its own rules of Professional Responsibility Rule 11 governs in Federal Court; Rules of Professional Responsibility govern wherever you are Non-frivolous arguments for extending the law are ok – you need to have evidentiary support or be able

to get it in discovery o Rule 11 usually involves monetary sanctions; bar rules could disbar you

Rule 11 existed since 1938 but wasn’t paid much attention to; 1983-1993, Rule 11 imposed fairly harsh sanctions – no safe harbor rule and sanctions were mandatory

o Now, even if there’s a violation, the court does not need to impose sanctions. Also, fine paid to court, not to opponent

← Bridges v. Diesel Service, Inc. Bridges sued under the ADA. Court dismissed without prejudice for failure to exhaust administrative

remedies since he hadn’t filed with EEOC before starting the action. Defendant moves for Rule 11 sanctions

Rule 11 imposes an obligation on counsel to stop, look, and listen. P’s lawyer did not display a competent level of legal research.

Monetary sanctions not necessary to deter future misconduct as attorney immediately acknowledges its error and attempted to rectify it

Rule 11 should be reserved for exceptional circumstances where claim is frivolous, here this was just a procedural mistake

← Sanctions In Bridges – Obvious violation because he didn’t file with EEOC first (11(b)(2) violation for failure to do

reasonable inquiry before filing complaint)o No sanctions but this is a published opinion, that’s bad news!o Court errs on side of more limited sanctions

For a party - 11(c)(1) – If Rule 11(b) has been violated, court may impose an appropriate sanction on any attorney, law firm, or party

o Sanction party based on which 11(b) violation it is (don’t sanction him in Bridges because it’s a lawyer error) – no monetary sanctions on party for violating 11(b)(2) – see 11(c)(5)(A)

For a law firm – Absent exceptional circumstances, law firm MUST be held jointly responsibleo Encourages self-policing within a firm

Non-monetary penalties – Court could make attorney do work over again without charging client, tell client your error and certify it to court, require CLE credits

You’d sanction someone more willful than negligent, pattern of conduct vs. isolated incident, how bad the problem is, experience of attorney

36

← Safe Harbor Provision (11(c)(2)) Motion for sanctions must be made separately from any other motion and must describe conduct that

violates Rule 11(b). IT must be served but not filed to the court if the challenged paper is withdrawn or corrected within 21 days after service. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.

o Serve opposing side, don’t file until 21 days after service if opposing party didn’t amend/withdraw

← Rector v. Approved Federal Savings Bank Rector made a frivolous claim. Approved moved for Rule 11 sanctions. At no time did Rector raise the

issue of the 21 day safe harbor provision until it was on appeal Issue is whether the 21-day safe harbor provision of Rule 11 is a non-waivable rule of jurisdiction

o If it’s jurisdictional, the court loses its authority over the Rule 11 motion is the safe harbor provision is NOT followed

o If it’s not jurisdictional, then it’s waivable by the defendant o SMJ is one thing court have independent authority to check out

Court equates Safe Harbor Provision to Statute of Limitations – a court still has jurisdiction if P files claim after SoL. Court only addresses the SoL if D raises it. D can waive it by failing to raise it

Argument is that it IS jurisdictional because you “must” serve within 21 days before filing. Court says there are many things that “must” be done which if not done don’t end jurisdiction – like PJ since if you don’t raise a PJ defense, you forgo it and essentially consent to jurisdiction of the court

o Its up to non-moving party to raise it at the beginning otherwise it’s waived. If they bring it up in court, court must throw the motion out

←

37

← VII. Joinder and Supplemental Jurisdiction← Joinder by Plaintiffs

Benefits to Joinder: Private – Avoids duplicative litigation and the expenses incurredo Public – Reduced backlog in court systems, avoids inconsistent results

Detriments – Packaging makes litigation more complex, can confuse jury, mandatory packaging may override P’s ability to chose forum

Balance between P’s autonomy and efficiency Joinder doesn’t alter the requirements of PJ, SMJ, and Venue

o Every claim in federal court must have a basis of Federal SMJ; claims can get in under supplemental jurisdiction if they arise out of the same transaction or occurrence

Two factors for getting a claim, party in: (1) Is there a joinder rule (procedural)? If yes, (2) is it supported by SMJ (jurisdictional)?

o It could have an independent basis of SMJ, if not you need supplemental ← Rule 17 deals with Real Party in Interest, Capacity (person’s ability to sue/be sued), and Standing (O must have suffered some injury before he can sue)← Claim ← Procedural Aspects

Rule 18 – A party asserting a claim may join as many claims as it has against opposing party Claimant can assert EVERY claim against opponent, even if not transactionally related 18 is permissive but there are preclusion rules that may FORCE to join several assertions of liability in

a single case 18 pertains to “a party asserting a claim – NOT JUST PLAINTIFFS

← Jurisdictional Aspects 18 is the procedural mechanism for getting the claim in. You still need a jurisdictional basis if the claim

does NOT have an independent basis of SMJ (FQ or Diversity) Notion of supplemental jurisdiction expands court’s authority of FQJ/Diversity. If you’ve already set the

bar so high under the Mottley arising under standard, there’s less fear for letting another claim in o Alternative is splitting up the claims in state/federal court – inefficient

Court has the power to keep state claims but it need not exercise it. Doctrine of discretiono Driving factors should be judicial economy, convenience, fairnesso Reasons to Dismiss:

38

If federal claim is dismissed before trial If case looks like a state case (like in Buffalo Creek where he debates attaching

Navigable Waters Act to get FQJ) If state law issues predominate Jury confusion with multiple claims Don’t litigate state claims that are issues of first impression

o Reasons to Keep state claim: State law claim was preempted by the federal statute – Congress only wanted federal

law to govern, no state laws to conflict← United Mine Workers v. Gibbs – Brennan

Plaintiff is Gibbs (TN) suing UMW (non-incorporated business with citizenship in TN) on a Federal Claim State law claim is also asserted (Rule 18(a) – you can assert as many claims as you want against an

opposing party) o Federal claim is the anchor claim that gets the case into federal court

This is before §1367 so you need a statute to get the claim in. They got it in under pendant jurisdiction (from Hern)

Constitutional Basis - Court says this is a constitutional case – Art. III §2 “The judicial power shall extent to all cases in law and equity arising under this Constitution”

o Cases not claims. A case can be made of multiple claims o Hern said as long as those grounds are designed to compensate for one actionable wrong, it

constitutes a case As long as state and federal claims derive from a common nucleus of operative fact (CNOF), it

meets the “case” requirement of Art. III §2 and courts have power to hear caseo Arising out of the same transaction relates to Common Nucleus of Operative Fact

Statutory Basis - §1331 – District courts shall have original jurisdiction of all civil actions arising under the Constitution

o Like “cases,” a civil action= more than one claim Federal anchor claim must be one of substance and viable Gibbs defines power of the federal courts to hear claims that have no independent statutory basis of

Federal Jurisdiction:o Federal/non-federal claims must share CNOFo Claims must be so related that P would ordinarily be expected to try all of them in one

proceedingo FQ must have substance sufficient to confer SMJ

39

o For any case to invoke FQJ, federal issue must be substantial ← §1367 – Supplemental Jurisdiction

(a) gives courts statutory authority to hear supplemental claims to an “anchor” claim (gives SMJ for nonfederal claims). Claims are “so related to claims in the action within such original jurisdiction…”

o Find anchor claim. If courts have original jurisdiction over that claim (FQ or Diversity), then they’ll have supplemental jurisdiction over all claims that form same case or controversy

o They use Constitutional language instead of Gibbs CNOF but they mean the same thing (b) is only relevant for cases founded on diversity (§1332) (c) District court has discretion to decide to hear supplemental claims

o (c)(1) and (c)(4) permit court’s discretion in two circumstances never discussed by Gibbs – novel/complex issue of state law and exceptional circumstances

← Permissive Party ← Procedural Aspects

Rule 18 is joinder of claims – Very broad; Rule 20 is Joinder of Parties – Not as Broad because the parties must arise out of same transaction/CNOF

Rule 20 – (a)(1) is for joining Plaintiffs; (a)(2) is for joining Defendantso Rule is permissive, P isn’t required to join all the parties

Two ways to get them parties in - (1) Arising out of same transactions, (2) Common question of law or fact

o (2) is the easier prong to meet because if you arise out of the same transaction, it’s a common question of law/fact (CQLF is broader than AST

Rule 20 is permissive – P might not want to join all possible parties because of jurisdictional problems or litigation strategy

o Under inclusive joinder of P is likely so the one P can get the first bite at the appleo Joining all Ds helps the P because multiple Ds are likely to lay blame at each other

If defendant’s don’t like joinder, they have options:o 20(b) – Court may issue orders to protect a party against prejudice that arises from including a

person against whom the party asserts no claim Protects a party only involved in one aspect of the case

o 42(a) If actions before court involve a common question of law/fact, the court MAY (2) consolidate the actions

Just Common Question of law or fact (broader), not “arising from same transaction”o 42(b) – For convenience, court may order separate trials of one or more separate issues, claims,

etc.

40

You can join for pretrial under joinder rules, this corrects it to allow for separate trials Theme – Joinder rules are broad in allowing joinder of claims (18), less liberal in allowing joining parties

(20), but court has corrective mechanisms (20b, 42) Rule 21 – Misjoinder of parties is NOT fatal. On motion or sua sponte, court can add or drop a party or

sever any claim against a party← Schwartz v. Swan

Dorothy in two car accidents 10 days apart. First one was with her sister-in-law, second one was with her husband. She wants to sue the drivers from both accidents in one case with her husband’s loss of consortium claim

o Her sister in law filed a separate claim against the drivers from the first accident Dorothy and her husband clearly meet Rule 20 since his claim is derivative of her injuries Issue is about suing the both defendants in one case Court says that the district court abused its discretion by forcing Dorothy to sue parties separately To separate the cases would require a finding of reasonable medical certainty who caused what injury.

Since you cannot, the parties arise out of the same transactiono It’s a common question of law or fact who was responsible for the injury

Defendants made the sister-in-law consolidate under Rule 42← Jurisdictional Aspects

What about a supplemental state claim against a non-diverse party? Constitutionally - Constitutes one case because a case can involve additional parties Statute - §1367(a) – Such supplemental jurisdiction shall include claims that involve the joinder or

intervention of additional parties o When claim is a federal question, supplemental jurisdiction is broad as long as other

claims/parties meet the same transaction – different when anchor claim is diversity §1367(b) – No supplemental jurisdiction when anchor is a diversity claim over a plaintiff’s claim against

a person made a party under Rule 14 or 20o Scenarios 1 - P(VA) has a state claim >$75K over D(MD). Can they assert a claim >75K against

D(VA)? NO – Inconsistent with §1332o Scenario 2 – P(VA) sues D (MD) for >75K. Can P2(VA) sue D(MD) for a claim LESS THAN 75K?

Rule says no jurisdiction for claims by P AGAINST persons made parties through joinder (D not made a party through joinder), OR over claim by persons joined by P under Rule 19 or 24

Here, P2 was joined by 20 This contradicts the rules of abrogation and SCOTUS saying that each P’s claim must

independently satisfy amount in controversy For supplemental claims, in Exxon v. Allapattah, the court said Congress didn’t remove

this exception so it’s ok

41

o Scenario 3 – P3(MD) wants to sue D(MD) for a claim > 75K? SCOTUS says no – Complete Diversity Rule must be treated differently from amount in

controversy requirement §1367 will allow circumvention of amount in controversy requirement but NOT for diversity of

citizenshipo Pro - Amount in Controversy was added for docket control and not in the Constitutiono Con - §1367(a) says “in any civil action where district courts would have original jurisdiction” –

Here, they wouldn’t have original jurisdiction If it’s a federal claim, then it’s a §1331 civil action which provides federal anchor

← Joinder by Defendants Rule 13 – Counterclaim and Crossclaim P (MD) sues D (VA) for state claim >75K. Can D join a negligence counterclaim against P?

o The claim is allowed and mandatory – Rule 13(a) Compulsory Counterclaim Rule 18 (joinder) is a “may” rule; Rule 13 is a “must” rule

o D needs to bring all claims against P but P doesn’t need to file all claims against D. This is untrue due to Claim preclusion which precludes P’s from bringing claims if they arose from from same transaction

o Rule 18 + Claim Preclusion = Rule 13

← Compulsory Counterclaims - Procedural Aspects Opposing party must state a counterclaim if it arises out of same transaction of the opposing party’s

claim If the D doesn’t file an answer, do they waive the right to a counterclaim?

← Carteret v. Jackson Default judgment against D because he didn’t file a counterclaim. He now wants to bring up the

counterclaim D says that since they served no pleading in the first case, the rule never kicked in Court would agree if pleading had never been required but here it is because the rule says “a pleading

must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party”

Default applies to whatever the party should have pleadedo Rule 13 is to prevent multiple cases

42

o Defendant was supposed to file an answer; it’s not like he didn’t have time to file! If D’s position were accepted, a default judgment would have no certainty. Court says it’s different

when there’s consent because there’s a settlement← Dindo v. Whitney – Same Judge as Carteret

Dindo’s case settled and he never thought of filing a lawsuit. Does the compulsory counterclaim apply here? If you settle before an answer has to be filed, then Rule 13 never kicks in and the counterclaim could be

brought Purpose of rule is to prevent multiple actions and achieve resolution in a single lawsuit of all disputes

arising out of the common matter If case had been tried, protection of court/parties says there should be no further litigation. If it’s

settled, court has not been burdened so justice seems obtainable← Two different ways of interpreting Rule 13’s fundamental purpose:

Equitable Rule – D’s usually waived claim but you look to a case’s particular facts to see if it would be unfair to preclude D from filing a second action (Dindo)

o Court has discretion Rule of Preclusion – More of a bright line rule. If you didn’t bring compulsory counterclaim and didn’t

answer with time to do so then you’ve waived right to counterclaimo Most courts read Rule 13 like this – we don’t want multiple proceedings (efficiency,

accuracy, consistency) o Claims that arise from same transaction need to be litigated in the same case

←← Compulsory Counterclaims - Jurisdictional Aspects

If a claim is a compulsory counterclaim, is §1367(a) always met?o Yes, because if it’s compulsory that means it arises out of same transaction (AST) which meets

CNOF CNOF is Constitutional Interpretation so it has the broadest sense. AST is narrower (rule

interpretation) What if a counterclaim is less than amount in controversy?

o §1367(b) is for claims by plaintiffs. A counterclaim is a claim by a defendant so it’s NOT precluded

o Congress is worried about P manipulating §1367 to get around §1332. D has no rule in manipulating SMJ

Holmes v. Vornado (2002) – No diversity. P tries to invoke FQJ but it doesn’t arise under. D asserts a compulsory counterclaim that does invoke FQJ. No SMJ because of well-pleaded complaint rule – look to complaint only, not counterclaim

43

←← Permissive Counterclaims

Rule 13(b) is permissive counterclaims – Claims against P that don’t Arise from the same transactiono Similar to the open season rule in 18(a) for allowing claims by Po Allows defendant to err on side of asserting any claim against P in pending case

Jurisdictionally , the permissive counterclaim will not arise out of same transaction. Since CNOF is broader, you can still get the claim in via §1367(a) if there’s no independent basis for SMJ

o Remember to look if there’s an independent basis of SMJ for claim!o Jones v. Ford Motor Credit – You need a loose factual connection between the claims

← Remember – You must also have PJ and Venue over the claims There’s a split in courts on whether PJ should be expanded with respect to additional claims against the

same defendanto Joinder rules are broad – 18 and 13 – you could easily have PJ over one claim but not over a

second claim Pendant PJ – Courts suggest there may be an opportunity to massage PJ Doctrine and allow the

assertion of certain types of claims against defendant. No PJ over completely unrelated claimo Example – Claim 1 is a Federal Statute (nationwide service – 4k) Claim 2 is a state claim (not

covered by long-arm statute). If it’s related (Arise out of same transaction) SOME courts will allow it.

They already have to litigate in that court so there’s no hardship in litigating second case

←← Crossclaims

Rule 13(g) – You can state a claim against a co-party if the claim arises out of the same transaction that us the subject matter of the original action or of a counterclaim or if claim relates to any property that is the subject matter of he original action. May include a claim that co-party is/may be liable to crossclaimant for all/part of claim asserted against the crossclaimant

They’re always permissive; “may” instead of compulsory Example – P(VA) sues O(MD) and D(MD) (O and D are joined under Rule 20(a)). O asserts a PERMISSIVE

counterclaim (doesn’t AST as original claim) against P. O can then assert a crossclaim against D if it arises out of the same transaction as her permissive counterclaim

o Once O has a claim against D, they can assert any other claim (Rule 18) against D. D can/must assert any counterclaim against O (13(a) and (b))

o Once you have that initial link, the sky is the limit in terms of claims Jurisdictionally –

o Claims between D and O have SMJ under §1367(a) – Arise out of same transaction

44

o Claims exempted under §1367(b) are claims by P and are not exempted here because these are claims by D

o The unrelated Rule 18 claims asserted between Ds are unlikely to meet §1367(a) jurisdiction Can non-diverse Ps crossclaim one another if they’re both suing the same D who counterclaims one of

them?o Rule 13(g) says cross-claims between co-parties so procedurally it’s fineo Jurisdictionally, it’s P1 trying to sue P2. If the anchor claim is diversity, under §1367(b), this is a

claim by a plaintiff against a person made a party under Rule 20 – The court would NOT have jurisdiction

If anchor claim was FQJ, then it’s fine←← Adding Parties

Rule 13(h) allows Ds to add other partieso Rule says that 19 and 20 govern the addition of a person as a party to a

counterclaim/crossclaim If D1 has claim against D2 and claim arises from same transaction as D1’s counterclaim against P, then

D1 can attach D2 to that counterclaim as long as it meets Rule 20o It has to relate to crossclaim or counterclaim

13(h) lets you add party when Rule 20 describes relationship to crossclaim or counterclaim that party has asserted

o You have to make the connection or add the party first, then you can label other claims Jurisdictionally this is fine because if it’s diversity, §1367(b) doesn’t block it (it’s a claim by a D, not a P);

also §1367doesn’t include 13(h) in its list of claims over which supplemental jurisdiction is precluded ←

← Party Impleader This is a method to override the plaintiff’s party structure, chosen by them in 20(a) Rule 13(h) – D can only add another party if they’re related to a claim he already has in the case If D doesn’t have one of those claims against an original party, Rule 14 comes in. Adding third-

party defendants o Narrow, permitting joinder of one “who is or may be liable to the defending party for all or part

of the claim against it Generally for claims for contribution (if state tort law allows it) or indemnification

(relating to K law) o Claims against a third party defendant MUST be derivative of the original claim P has against D

P sues D. D has a right to indemnity for the claim from T so D impleads T. Any judgment for P against D can be deflected to T. If D could not implead T, D would have to sue T in a separate proceeding

45

o Impleader promotes efficiency! ← Procedural Aspects ←← Markvica v. Brodhead-Garrett Co. – Difference between contribution and indemnification

Kid got hurt in shop class, they sue the manufacturer. Manufacturer impleads the school for improper maintenance and inadequate supervision, seeking indemnity

Indemnity – Enables one tortfeasor to shift entire burden of judgment to anothero Usually when one has been required to pay because of a legal relationship (respondeat

superior, vicarious liability) to shift burden to actual culprit) Contribution – Based upon common liability of two or more actors for the same injury. Equalizes burden

on wrongdoers by requiring each to pay his own proportionate share Court says indemnity will not be allowed when both parties have been negligent Rule 14(a) permits joinder of a party who is or may be liable to a defending party for all or part of P’s

claim. Where state law creates a right to contribution or indemnity, wrongdoer who has been sued can implead his co-wrongdoers before P obtains a judgment – this speeds up the claim

Rule 14 trumps state law requirement that you wait until D is liable before impleading TPDo Joint and Several liability is a form of contribution

Once TPD is in the case, they have the right of all those counterclaim, crossclaim rules Rule 14 is longer than many of the rules but it defines what claims these parties can have with each

other – 14(a)(2) explains this A P asserting a claim against a TBD is called an upsloping 14(a) claim whereas a TPD asserting a claim

against a P is a downsloping 14(a) claimo Impleader is only the initial joinder of the absent party for indemnity/contribution

← Jurisdictional Aspects Any claim under 14(a) must be supported by an it’s own basis of SMJ If there’s no independent basis, is there CNOF under §1367(a)?

o Impleader claim requires TBD to be liable to D for P’s claim – yeso Upslopiong/Downsloping claims seem to meet it since they can only be asserted if they AST as

the underlying disputeo Upsloping 14(a) claims raise concerns – Kroger (decided before §1367)

←← Owen Equipment v. Kroger (1978)

Kroger’s widow (Iowa) sued Omaha Power District (Nebraska) alleging negligence when a power line killed her husband. Case was founded on diversity

OPPD impleads Owen Equipment since their crane hit the power line; OPPD gets SJ on its claim, Kroger amends complaint to sue Owen. At third day of trial, Owen says their PPOB is in Iowa, destroying diversity

Kroger couldn’t have originally asserted its claim against Owen, they had to wait until OPPB brought them in to assert their claim.

o Dissent thinks this is OK because the P doesn’t bring the TPD into the lawsuit so there’s no deliberate circumvention of diversity requirement

o Majority says no because you still need independent basis for SMJ §1367 codifies Kroger by denying claims by Ps against parties joinder under Rule 14 Following the dismissal of the case in federal court, Kroger filed in state court and the court ruled that

her claim was NOT barred by the statute of limitations. After Kroger, Congress added §1367(d) which tolls the statute of limitations while claims are pending in federal court

If Owen brought a claim against Kroger and Kroger compulsory counterclaimed, most courts would still say this is exempted by jurisdiction because it’s still a claim by a P against a party joined by Rule 14 (§1367(b))

o Some courts say it’s ok due to last clause of §1367(b)

46

Rules and Statutes← Rule 4 – Summons

47

← (a) Contents; Amendments. (1) Contents. A summons must:

o (A) name the court and the parties;o (B) be directed to the defendant;o (C) state the name and address of the plaintiff’s attorney or — if unrepresented —

of the plaintiff;o (D) state the time within which the defendant must appear and defend;o (E) notify the defendant that a failure to appear and defend will result in a default

judgment against the defendant for the relief demanded in the complaint;o (F) be signed by the clerk; ando (G) bear the court’s seal.

(2) Amendments. The court may permit a summons to be amended.← (b) Issuance.← On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons — or a copy of a summons that is addressed to multiple defendants — must be issued for each defendant to be served.← (c) Service.

(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule  4(m)  and must furnish the necessary copies to the person who makes service.

(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

(3) By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.

← (d) Waiving Service. (1) Requesting a Waiver. An individual, corporation, or association that is subject to

service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

o (A) be in writing and be addressed: (i) to the individual defendant; or (ii) for a defendant subject to service under Rule 4(h), to an officer, a

managing or general agent, or any other agent authorized by appointment or by law toreceive service of process;

o (B) name the court where the complaint was filed;o (C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a

prepaid means for returning the form;

48

o (D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;

o (E) state the date when the request is sent;o (F) give the defendant a reasonable time of at least 30 days after the request was

sent — or at least 60 days if sent to the defendant outside any judicial district of the United States — to return the waiver; and

o (G) be sent by first-class mail or other reliable means. (2) Failure to Waive. If a defendant located within the United States fails, without good

cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

o (A) the expenses later incurred in making service; ando (B) the reasonable expenses, including attorney’s fees, of any motion required to

collect those service expenses. (3) Time to Answer After a Waiver. A defendant who, before being served with

process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent — or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

← (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:o (A) delivering a copy of the summons and of the complaint to the individual

personally;o (B) leaving a copy of each at the individual’s dwelling or usual place of abode with

someone of suitable age and discretion who resides there; oro (C) delivering a copy of each to an agent authorized by appointment or by law to

receive service of process.← (f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been filed - may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

o (A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;

o (B) as the foreign authority directs in response to a letter rogatory or letter of request; or

o (C) unless prohibited by the foreign country's law, by: (i) delivering a copy of the summons and of the complaint to the individual

personally; or

49

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.← (g) Serving a Minor or an Incompetent Person. A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is notwithin any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).← (h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:o (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; oro (B) by delivering a copy of the summons and of the complaint to an officer, a

managing or general agent, or any other agent authorized by appointment or by law to receive service of process and — if the agent is one authorized by statute and the statute so requires — by also mailing a copy of each to the defendant; or

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

← (i) Serving the United States and Its Agencies, Corporations, Officers, or Employees. (1) United States. To serve the United States, a party must:

o (A) (i) deliver a copy of the summons and of the complaint to the United States

attorney for the district where the action is brought — or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk — or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office;

o (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

o (C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.

(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.

(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).

(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:

o (A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or

o (B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.

50

← (j) Serving a Foreign, State, or Local Government. (1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality

must be served in accordance with 28 U.S.C. § 1608. (2) State or Local Government. A state, a municipal corporation, or any other

state-created governmental organization that is subject to suit must be served by:

o (A) delivering a copy of the summons and of the complaint to its chief executive officer; or

o (B) serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant.

← (k) Territorial Limits of Effective Service. (1) In General. Serving a summons or filing a waiver of service establishes personal

jurisdiction over a defendant:o (A) who is subject to the jurisdiction of a court of general jurisdiction in the state

where the district court is located;o (B) who is a party joined under Rule 14 or 19 and is served within a judicial district

of the United States and not more than 100 miles from where the summons was issued; or

o (C) when authorized by a federal statute. (2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under

federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

o (A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and

o (B) exercising jurisdiction is consistent with the United States Constitution and laws.

← (l) Proving Service. (1) Affidavit Required. Unless service is waived, proof of service must be made to the

court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.

(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:

o (A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

o (B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

(3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.

← (m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).← (n) Asserting Jurisdiction over Property or Assets.

(1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.

51

(2) State Law. On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant’s assets found in the district. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district.

←← 28 USC §1332 – Diversity of Citizenship; Amount in Controversy← (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—

(1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are

additional parties; and (4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a

State or of different States.

For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.

← (b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.← (c) For the purposes of this section and section 1441 of this title—

(1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business; and

(2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.

←← 28 USC § 1331 - Federal question← The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.←← 28 U.S.C. §1441. Actions Removable Generally← (a) Any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.← (b) Actions arising under shall be removable without regard to citizenship. Any other removal can occur only if none of the defendants are citizens of the state in which the action is brought←

52

← 28 U.S.C. §1446(a)(b)(d). Procedure for Removal← (a) Defendant seeking to remove shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.← (b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.←← If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.←← (d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.←← 28 U.S.C. §1447. Procedure After Removal Generally← (a) In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise.← (b) It may require the removing party to file with its clerk copies of all records and proceedings in such State court or may cause the same to be brought before it by writ of certiorari issued to such State court← (c) Motion to remand the case on basis of any defect other than lack of SMJ must be made within 30 days after filing the notice under 1446(a). If at any time before final judgment it appears the district court lacked SMJ, the case shall be remanded. ← (d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except an order removed pursuant to §1443← (e) After removal if plaintiff seeks to join additional defendants whose joinder would destroy SMJ, the court may deny joinder or permit joinder and remand to State court←← 28 U.S.C. §1448. Process After Removal← In any case removed where one or more of the defendants has not been served with process, such process or service may be completed or new process issued. This shall not deprive any defendant upon whom process is served after removal of his right to remand the case←← Fed. R. Civ. P. 81 – Applicability of the Rules in General; Removed Actions← (c)(2) After removal, repleading is unnecessary unless the court orders it. A defendant who did not answer before removal must answer or present other defenses or objections under these rules within the longest of these periods:← (A) 21 days after receiving — through service or otherwise — a copy of the initial pleading stating the claim for relief;

53

← (B) 21 days after being served with the summons for an initial pleading on file at the time of service; or← (C) 7 days after the notice of removal is filed. ←← § 1391. Venue generally← (a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in

(1) a judicial district where any defendant resides, if all defendants reside in the same State,

(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

(3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

← (b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in

(1) a judicial district where any defendant resides, if all defendants reside in the same State,

(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

(3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

← (c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.← (d) An alien may be sued in any district.← (e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which

(1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action. Additional persons may

be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.

← The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought.

54

← (f) A civil action against a foreign state as defined in section 1603 (a) of this title may be brought—

(1) in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;

(2) in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605 (b) of this title;

(3) in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603 (b) of this title; or

(4) in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.

← (g) A civil action in which jurisdiction of the district court is based upon section1369 of this title may be brought in any district in which any defendant resides or in which a substantial part of the accident giving rise to the action took place.←← § 1404. Change of venue← (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.← (b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer.← (c) A district court may order any civil action to be tried at any place within the division in which it is pending.← (d) As used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.←← § 1406. Cure or waiver of defects← (a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.← (b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.← (c) As used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.←← Rule 12 – Defenses and Objections← (a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

o (A) A defendant must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the

request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

55

o (B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

o (C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.

(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.

(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

o (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action; or

o (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

← (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.

← A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.← (c) Motion for Judgment on the Pleadings. After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.← (d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.← (e) Motion For a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

56

← (f) Motion To Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is

not allowed, within 21 days after being served with the pleading.← (g) Joining Motions.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.

(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

← (h) Waiving and Preserving Certain Defenses. (1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by:

o (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); oro (B) failing to either:

(i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed byRule

15(a)(1) as a matter of course. (2) When to Raise Others. Failure to state a claim upon which relief can be granted, to

join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:o (A) in any pleading allowed or ordered under Rule 7(a);o (B) by a motion under Rule 12(c); oro (C) at trial.

(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

← (i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)-(7) — whether made in a pleading or by motion — and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.←← Rule 7. Pleadings Allowed; Form of Motions and Other Papers← (a) Pleadings. Only these pleadings are allowed:

(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer.

← (b) Motions and Other Papers (1) In General. A request for a court order must be made by motion. The motion must:

o (A) be in writing unless made during a hearing or trial;o (B) state with particularity the grounds for seeking the order; ando (C) state the relief sought.

(2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers.

←← Rule 8. General Rules of Pleading← (a) Claims for Relief. A pleading that states a claim for relief must contain:

57

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

← (b) Defenses; Admissions and Denials. (1) In General. In responding to a pleading, a party must:

o (A) state in short and plain terms its defenses to each claim asserted against it; and

o (B) admit or deny the allegations asserted against it by an opposing party. (2) Denials — Responding to the Substance. A denial must fairly respond to the

substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the

allegations of a pleading — including the jurisdictional grounds — may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegation — other than one relating to the amount of damages — is admitted if a responsive pleading is required and the allegation is not denied. If aresponsive pleading is not required, an allegation is considered denied or avoided.

← (c) Affirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any

avoidance or affirmative defense, including:o accord and satisfaction;o arbitration and award;o assumption of risk;o contributory negligence;o discharge in bankruptcy;o duress;o estoppel;o failure of consideration;o fraud;o illegality;o injury by fellow servant;o laches;o license;o payment;o release;o res judicata;o statute of frauds;o statute of limitations; ando waiver.

58

(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

← (d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency. (1) In General. Each allegation must be simple, concise, and direct. No technical form is

required. (2) Alternative Statements of a Claim or Defense. A party may set out 2 or more

statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

← (e) Construing Pleadings. Pleadings must be construed so as to do justice.←← Rule 9. Pleading Special Matters← (b) Fraud or Mistake; Condition of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.←← Rule 10. Form of Pleadings← (a) Caption; Names of Parties. Every pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties.← (b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence — and each defense other than a denial — must be stated in a separate count or defense.← (c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.←← 15. Amended and Supplemental Pleadings← (a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

o (A) 21 days after serving it, oro (B) if the pleading is one to which a responsive pleading is required, 21 days after

service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

← (b) Amendments During and After Trial.

59

(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.

(2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move — at any time, even after judgment — to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.

← (c) Relation Back of Amendments. (1) When an Amendment Relates Back. An amendment to a pleading relates back to

the date of the original pleading when:o (A) the law that provides the applicable statute of limitations allows relation back;o (B) the amendment asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out — or attempted to be set out — in the original pleading; or

o (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule  15(c) (1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

(2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule  15(c) (1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney's designee, to the Attorney General of the United States, or to the officer or agency.

← (d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.←← Rule 41. Dismissal of Actions← (a) Voluntary Dismissal.

(1) By the Plaintiff.o (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2 and 66and any

applicable federal statute, the plaintiff may dismiss an action without a court order by filing:

(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared.

60

o (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

← (b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.← (c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant's voluntary dismissal under Rule 41(a)(1)(A)(i) must be made:← (1) before a responsive pleading is served; or← (2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.← (d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:

(1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied.

←←

61

Freer Lecture← There is no right answer to Personal Jurisdiction! You need an analytical framework ← I. Personal Jurisdiction (PJ)← II. Notice← III. Subject Matter Jurisdiction (SMJ)← IV. Venue←← I-IV – Choosing a Forum, are we in the right court?←← V. Erie Doctrine – What law we apply←← VI. Pleadings – claims, defenses that start case← VII. Joinder – how big the case gets←← I. Personal Jurisdiction← In what state(s) can the plaintiff sue the defendant(s)? Federal/state doesn’t matter!

Court can have power over the defendant or over her property← Three kinds of PJ: In personam, In Rem, Quasi in Rem (QIR)

In Personam – Power over defendant because of connection with forum In Rem/QIR – Power over defendant’s property

← Ultimate limit of having “power” is Due Process (Constitutional Requirement), there must also be a statute that allows jurisdiction on the case (often a long-arm statute)

First assess whether a statute allows for PJ. If yes, then do Due Process analysis← A. In Personam Jurisdiction

General or Specific – General means defendant can be sued in this forum on a claim that arose ANYWHERE; Specific means defendant is sued for a claim that arose in the forum

← 1. Constitutional Limit

62

The law today is an amalgam of all the previous cases, starting with Pennoyer Pennoyer v. Neff (1878) – Court has power over everything, everybody in the state.

o Gives us four traditional bases for in personam jurisdiction: (1) served with process in the forum (presence = General Jurisdiction); (2) defendant’s agent is served with process in the forum; (3) defendant is domiciled in the forum (general jurisdiction as well); (4) consent – you can always consent to jurisdiction

o This makes it very tough to go after a nonresident, so court expanded the traditional bases

Hess v. Pawloski (1927) – Defendant from PA, drives to MA and gets into a car accident. Massachusetts had a statute that said if you drive a car in our state and you’re in a wreck, you have appointed a state officer as an agent for service of process

o This is consistent with Pennoyer because we have service of process in the forum on the defendant’s agent

o This opinion expands consent to implied consent o Every state has a nonresident motor vehicle statute

International Shoe (1945) – Court has jurisdiction if defendant has such minimum contacts with a forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice

o This is very flexible and had led to an expansion of jurisdictiono By this time, it’s clear we can serve process on the defendant outside of the forum

– you do not have to serve inside of the forumo Two parts – minimum contacts and fairness (fair play/reasonableness)o Nowhere does it overrule Pennoyer! Court says this is the test ONLY if the

defendant is not present – it implies the 4 traditional bases are correct McGee (1957) – TX insurance company sold one contract in CA. Does CA have jurisdiction

even if there was just one contact? Yes!o Defendant solicited that contracto Relatedness – Plaintiff’s claim arose from defendant’s contact with the forum – for

breach of very contract that brought defendant to forumo State’s interest – Cal had an interest in providing a court for its people

Hanson v. Decka (1958) – Court finally said no on PJ! Wealthy PA woman sets up trust fund at a DE bank. Woman moves to FL. When she dies, does Florida have jurisdiction over DE bank? No!

o Purposeful availment – To have a contact under International Shoe, contact must result from Purposeful Availment. DE bank never reached out to Florida; the only reason they were there was because woman moved there. Unlike McGee where TX company reached out to CA

Worldwide Volkswagen (1980) – No jurisdiction! Robinsons in NY sue in OK – do they have jurisdiction over the regional distributor (WWVW) who does business in NY NJ CT, and Seaway who only does business in NY. No jurisdiction because there’s no purposeful availment. They didn’t ship car to OK! Tie there was simply from a unilateral act of a third party

o Robinsons argue forseeability because if you buy a car in NY it’s foreseeable that it can be driven to OK.

o Forseeability is not enough! You need forseeability that defendant could get sued in that forum! Not foreseeable that regional distributor and retailer could be sued there

Calder v. Jones (1984) – California had jurisdiction over Floridians who wrote a defamatory article in Nat’l Enquirer

63

o Defendant need to go to CA to have minimum contactso Effects Test – You can have minimum contacts by having an effect there

Burger King (1985) – Yes Jurisdiction!o Two parts to International Shoe test – contact part and fairness parto You must have a relevant contact before fairness is even assessed. All the fairness

in the world will not make up for a lack of a relevant contacto In this case, contact was easy – they availed themselves of FL. Big deal here was

fairnesso On fairness, burden is on the defendant to show that that forum is unconstitutional

– very tough to show! So gravely inconvenient that you’re at a severe disadvantage in the

litigation. Relative wealth of parties is irrelevanto This is a Brennan opinion who was traditionally a protector of the little guy

Asahi (1987) – Stream of Commerce – You make something, sell it to State B. Company in State B puts your part in their product and sells it to States C, D, E. you didn’t send your product to state C, D, E. Can you be sued there? Have you availed yourself of C, D, E

o Court split 4-4 and Stevens was in the middle – two approaches! o Brennan – It is a contact if you put product in the stream and can reasonably

anticipate that it will get to states C, D, Eo O’Connor – You need what Brennan has + an intent to serve state C, D, Eo No law here! This means you need to argue both ways

Burnham (1990) – NJ Defendant sued in CA on claim that arose in NJ. Only way this works is if Cal has general jurisdiction – defendant was served with process in Cal. Is this enough by itself to give jurisdiction? Do the Pennoyer traditional bases live, or were they replaced by International Shoe? Another 4-4 split!

o Scalia – Presence when served is ok on its own, you don’t assess minimum contacts/International Shoe because of its historical pedigree

Remember, Shoe itself implied that this would be ok on its own because of presence

o Brennan – Historical pedigree doesn’t matter, you must assess under Shoe Brennan said Burnham’s contacts were sufficient to give general

jurisdiction though, so all justices agree. According to Brennan, anyone who has ever set foot in Cal for 3 days is

subject to general jurisdiction there General and Systematic - Perkins and Helicopteros – A court has general jurisdiction if

defendant has continuous/systematic ties with the forum o A company with its world HQs or individuals in their domiciles can be sued there on

claim anywhere Recap of Constitutional Analysis – Does one of the traditional bases apply? If yes, go

to the Burnham split. Maybe presence is good on its own or maybe you need to do Shoe minimum contacts analysis. If you do need to go to minimum contacts analysis: (1) relevant contact between defendant and forum – (a) contact from purposeful availment and (b) forseeability – must be foreseeable that defendant could get sued there; (2) fairness – (a) relatedness – Does plaintiff’s claim arise from defendant’s contact with forum? This is assessing general or specific jurisdiction, then (b) five fairness factors (burden on defendant) – (i) inconvenience for defendant/witnesses; (ii) state’s interest; (iii) plaintiff’s interest; (iv) interest in efficiency; (v) interstate interest in shared substantive policy (little opinion on (iv) and (v); Kulko – No jurisdiction because of interest in family harmony)

64

← 2. Statutory Analysis On exam – always start on statute! Every state has statute based on the 4 traditional

bases as well as statutes that let you go after nonresidents (specific jurisdiction statutes) – nonresident motorist statutes (Hess); long-arm statute – for other claims.

o Statutes vary from state to state – some have laundry listo Long-arm statutes often say we have jurisdiction over defendant who “commits a

tort in our state” – commits a tort is interpreted differently! Grey v. American Radiator Look for a fact pattern where you sell something in state B and it blows up

there. Did you commit tort there? Maybe – some say yes because the injury is there, others say no, your negligence was in state A and thus the statute doesn’t apply to you

o Note: You’ll usually have relatedness if you meet the long-arm statute← B. In Rem and Quasi In Rem

Difference between the two – with in rem, the suit itself is about who owns that property; QIR, dispute has nothing to do with who owns it

o Good example of this is Pennoyer which arose from an action after Mitchell v. Neff which was about breach of contract. That is QIR. That suit would have worked if the court seized that property at the outset of the case

o For In Rem and QIR, you need to make sure court seizes property at outset of the case

Starting point – is there a statute? Yes, an attachment statute which every state has that allows seizure as basis of jurisdiction for property which defendant owns or claims to own. Next point – Constitutional Test

Shaffer v. Heitner (1977) – In addition to seizing property at outset, you still need to show that defendant meets International Shoe

o Constitutional test for in personam, in rem, QIR is the same

II. Notice In addition to PJ, you need to give defendant notice of service of process

← A. Service of Process Governed by Federal Rule 4 Definition: Process consists of a summons and a copy of the complaint

o Summons is a symbol of court’s power over you – Rule 4(a)(1)o Service can be made by any NON party who is at least age 18o To serve an individual, Rule 4(2). 4(e)(2) gives three alternatives:

Personal Service Substituted Service at defendant’s dwelling (usual abode) AND you must

serve someone of suitable age (note, it doesn’t say age 18) and discretion who resides there

Serve defendant’s agent

65

o Don’t forget 4(e)(1) – You can use methods for serving process allowed by state law! State where federal court sits AND where service is effected

o How to serve a business, 4(h)(1) – Serve an officer or managing or general agent – someone of significant responsibility given the job description

4(e)(1) applies here too. You can use state methods o Waiver of service, Rule 4(d). This is NOT service by mail, it’s waiver by mail

Send to defendant process and a waiver form and a SASE. If she returns it by 30 days, then we deem it a waiver of service

If she doesn’t mail it in 30 days, then we have to serve process formally and she will pay the costs!

← B. Constitutional Standard Mullane v. Central Hanover Bank (1950) – Notice is OK if it is reasonably calculated under

all the circumstances to apprise the party of the proceeding All of the methods of Rule 4 are constitutional even if the defendant didn’t actually get it.

No constitutional requirement that defendant actually receive service of process! Jones v. Flowers (2006) – If the plaintiff becomes aware that it was not received, she may

have to pursue other means. In this case, state became aware that defendant wasn’t getting service because the mail kept getting returned. Court required them to make service by other means

←← III. Subject Matter Jurisdiction

What court do we go to in state X? State court or federal court? State courts can hear any kind of case, they have general SMJ. One minor exception is

that there are some federal question cases that must go to federal court – bankruptcy, patent infringement, etc.

Federal courts have limited SMJ because Article III says so – Diversity of Citizenship and Federal Question

Remember: PJ is over parties, SMJ is over claims ← A. Diversity of Citizenship – 28 USC §1332(a)(1)

(1) A case between citizens (not residents) of different states; (2) amount must exceed $75K

← 1. Citizens of Different States Complete Diversity Rule (from Strawbridge v. Curtis (1806)) – No diversity if any plaintiff is

a citizen of the same state as any defendant Citizenship of a human being – A US citizen is a citizen of the state where domiciled.

o Domicile – You only have 1 at a time. You retain your domicile until you (1) are present in the new state AND (2) you form the intent to make it your permanent home

Example is Robinsons in WWVW – they form intent to go to AZ but their domicile is still NY because they never set foot in AZ

Citizenship of Corporation – 1332(c)(1) – Corporation is a citizen of two places – (1) where it’s incorporated; (2) the one state where it has its principle place of business (PPOB)

66

o A corporation, unlike a human being can be a citizen of more than one state o To determine PPOB, SCOTUS determined Hertz (2010) – PPOB is the company’s

nerve center – the place from which business is directed. Usually the HQs Before Hertz, some courts said PPOB was nerve center, others said muscle

center, where it did most of its business Citizenship of an Unincorporated Business (Partnership, LLC) – You look to citizenship of

ALL memberso It could be a citizen of all 50 states, the Teamsters Union is like this meaning it

can’t be sued in federal court under diversity ever← 2. Amount in Controversy

Must exceed 75K. The claim itself must exceed it, not counting interest on claim and costs of litigation

Plaintiff’s claim governs unless it is clear to a legal certainty that she cannot recover more than 75K – pretty rare!

o Like if there were a statutory cap on damages or a contractual breach that limited recovery

Aggregation – Where we must add multiple claims to get over 75Ko We aggregate claims if it is one plaintiff vs. one defendant – no limit to number of

claims and the claims don’t need to be related at all!o You cannot aggregate if you have multiple plaintiffs OR multiple defendantso FOR JOINT CLAIMS, USE THE TOTAL VALUE OF THE CLAIM – and the number of

parties is IRRELEVANT This is so because in a joint claim, any one of the multiple tortfeasors could

be held liable by himself ← B. Federal Question Jurisdiction (§1331)

The amount in controversy is irrelevant, as is citizenship Case has to arise under federal law Well-Pleaded Complaint Rule – Court looks ONLY at the complaint, not the answer,

counterclaims, etc. Within the complaint, look only at the claim itself Mottley (1908) – Mottley’s contract with RR for free pass then congress passes law saying

no free passes. Mottley’s sue RR for breach of contract, saying federal law doesn’t apply to them. Case cannot go to federal court because it does not arise under federal law. Here, the claim is breach of contract. Federal law not applying is an anticipated defense

o Ask yourself: Is the plaintiff enforcing a right under federal law? Answer here is no!← Supplemental Jurisdiction

For every claim in federal court, there must be SMJ Test every claim for diversity and federal question. If it does NOT meet them, we might

still get it in through supplemental jurisdiction (§1367)o Here, we’re talking about another claim in the case. It can’t get the case into

federal court

67

Gibbs – Labor disputes in coal fields. One plaintiff and one defendant, both from Tennessee, two claims. Claim 1 arises under federal law (federal labor law), Claim 2 arises under state law – by itself, could not get into federal court. SCOTUS said federal court can hear that claim if it is part of same overall case as the claim that got us into federal court

o If those claims share a “common nucleus of operative fact”o If claims arise under transaction or occurrence, it always meets Gibbs

§1367 is easy if we keep it mechanical To do supplemental: (1) Does §1367(a) grant supplemental jurisdiction? Yes if it meets

Gibbs (Common Nucleus of Operative Fact); (2) §1367(b) kills supplemental jurisdiction over certain claims ONLY IN DIVERSITY CASES and only claims BY PLAINTIFFS (a) against parties joined by 14, 19, 20, 24, (b) rule 19 plaintiffs, (c) rule 24 plaintiffs

← Removal – Moving from state trial court to federal trial court §§ 1441, 1446, 1447 – Removal Provisions It is a one way street. This goes ONLY from state to federal. You CANNOT remove from

federal to state. If a case doesn’t belong in federal court, it is remanded to state court General Rule - Removal if the case invokes Federal SMJ (if it meets diversity/federal

question) Exception – You cannot remove a diversity case if any defendant is a citizen of the forum

o Professors love to mix it up and give diversity of parties but make it over federal question – don’t get faked out!

All defendants must agree to remove a case Venue Provision – You can remove only to the federal district that embraces that state

court where it sits←← IV. Venue

SMJ tells us that a case can go to federal court. Venue tells us which federal court← A. The Basic Rules

§1391 – Venue Choices §1391(a) for Diversity Cases, §1391(b) for Federal Question Cases but the two basic

provisions are the same; (1) and (2) are the same for each – WHAT ABOUT (3) In a case filed by the plaintiff in federal court, your two choice are (1) lay venue in a district

where ALL defendants resideo If all defendants reside in different districts of the same state, then you can sue

them all in any of those districts o It’s where the defendant resides – different from citizenship. Residence for Venue

– for individual, it’s your domicile, for a business (§1391(c)), residence is in all districts where it is subject to personal jurisdiction when the case is FILED

Applies to ALL businesses (corporation, LLC, Partnership, etc.) Example – Ford has its PPOB in Michigan and incorporated in Delaware. It

does business everywhere so it’s subject to PJ everywhere

68

RESIDNCE IS FOR VENUE, CITIZENSHIP IS FOR SMJ (2) Venue where a substantial part of the claim arose

← B. Transfer Moving within the same judicial system Original federal court is called the transferor and the court to which we send it is the

transferee Two transfer statutes – in both of them, the transferee must be a (1) proper venue and (2)

must have personal jurisdiction, without waiver by the defendant o This is a great way to check transfer and venue/PJ – good exam question!

§1404(a) applies when transferor is a proper venue. Allows for transfer based on convenience of parties and witnesses AND the interest of justice

o In deciding whether to transfer, which is totally up to the judge, court will look at public factors and private factors

§1406(a) where the transferor is an improper venue. Up to the court to transfer or dismiss ← C. Forum Non Conveniens

Different from transfer. This is where a court dismisses because there’s another court that is the center of gravity

You dismiss because transfer is legally impossible. Like where the better court is in a different judicial system, like a foreign country

Piper Aircraft v. Reyno (1980s) – Plain crash in Scotland where everyone/everything was Scottish, but manufacturer was in US. Court allows FNC dismissal because everything was in Scotland

o Look at Footnote 6 of Piper to see public/private factors. They are the same as in §1404

Defendants love FNC because in the foreign country they won’t be liable for much because there is no strict liability, punitive damages, etc.

When we get an FNC dismissal, it’s conditional upon the defendant submitting to the foreign court

←← V. Erie Doctrine

Generally comes up only in Diversity cases Federal court must decide an issue – must federal judge apply state law to decide that

issue Comes from Erie v. Tompkins (1938) – Apply state substantive law because (1) Rules of

Decision Act (§1652) and (2) the 10th Amendment – Power not given to federal government stays with the state government

How do you know if a case is substantive? The elements of a claim. But if it’s not obviously substantive?

o Starting point is not Erie, it’s Hannah v. Plumer (1965) – What we thought was one Erie doctrine is really two. First question we ask – Is there a Federal Directive on point – could be a statute, FRCP, etc.? If yes, we apply the federal rule as long as it is valid

69

If federal directive is an FRCP, how do you know it if’s valid? Rules Enabling Act (§2072) – Shady Grove. Court generally says it’s valid

What if there’s no federal directive on point? This is an Erie question. Must file state law if issue is substantive. Three tests: (1) outcome determination (Guaranty Trust (1945)) –If federal judge ignores state law, will it cause a different outcome? If no, we don’t want that and you must apply state law; (2) Balance the Interest (Bird (1958)) – Ordinarily federal courts follow state law unless there is a federal interest in doing it a different way; (3) Twin Aims of Erie (dicta in Hannah) – We want to avoid (i) forum shopping and (ii) inequitable administration of the law – Ask question at outset of case. If federal judge ignores this state law, will it cause people to flock to federal court? If so, that’s a bad idea because we don’t want to promote forum shopping

70

Schaffner on Outlining← SMJ you may use statutory component; PJ doesn’t have as big of a statutory component, you have to think more about how to organize it← Syllabus organizes the semester and gives you the large and medium issues← Create outline in IRAC principle – Rule, Application, Conclusion

Organize suptopics under IRAC← When looking at rule, identify possible issues – gray areas

What is the real standard for purposeful availment of stream of commerce? (Asahi – O’Connor, Brennan)

Different applications of the rule – Burnham – Scalia vs. Brennan Quasi-in-rem/in-rem cases like Shaffer. Does that work in real property?

← Application What are the kinds of facts you should be looking for? Minimum contacts – is there a contract there? List kinds of facts

← Conclusion “Maybe” is many times the right answer. The best way to add value to your conclusion is where policy comes in. How would policy best be applied in choosing the right arguments

←← Personal Jurisdiction Outline

Two primary policies – Individual Fairness and Convenience (Burden on defendant) versus State Sovereignty

o If defendant purposefully availed himself from the benefits of the state, then he was able to handle the obligations in court

Statutory and Constitutionalo Statutory – Long Arm Statute

Does the court have statutory authority over the defendant? Long arm statute, Consent, service in state, (4)(k) exception

presented in hypothetical – nationwide long-arm statute or (4)(k)(2)

Remember if it’s 4k2 analysis, you’re dealing with national service so your constitutional analysis changes

71

Interpret the long arm statute – could look like CA (extent to Constitution), or GA (more limited)

o Constitutional – What does due process require? International Shoe – has defendant purposefully availed himself of such

minimum contacts with the state such that fair play and substantial justice are followed

(1) Minimum Contacts – (1) nature of the contact (single/isolated or continuous/systematic), (2) relationship between contact and the claim (give rise/related/unrelated); (3) purposeful availment (how much benefit is person getting from the state)

Hanson case gives us purposeful availment (1) Stream of Commerce (WWVW and Asahi) (2) Contract Cases (BK) (3) Internet (Revell) (3) Effects Test (Calder, Jones, Revell)

(2) Reasonableness – (1) Burden on defendant (how inconvenient on defendant? High Bar); (2) state’s interest (is plaintiff resident/citizen? Does state have an interest in regulating? (3) Plaintiff’s interest (4) Interstate interests

We’ll also see Joinder analysiso The more reasonable the forum is, perhaps less compelling the minimum contacts

have to be Organization by doctrine, not case by case

← Notice Rule 4 Statute/Rule and Constitution

o Rule 4 elements – Waiver (is there a waiver?) or Personal Service Waiver (mail or by other reliable means – email/fax?)

If a defendant complies, what does that mean? What if they don’t comply?

Service – What (complaint and summons), Who (served by a non-party whose 18 years of age, Where (personally on defendant or at the defendant’s dwelling/usual place of abode – Kashoggi), to whom (suitable age and discretion and residing there within)

Or by state law (in addition to (4)(e)) Constitutonal Test – Mullane

What satisfies due process? Notice reasonably calculated to inform parties of the penancy of the action so that they may appear and be heard

Cost benefit analysis Types of notice:

← Publication, Mailing, Personal

72

Schaffner Course Review← Not really a caselaw driven case, really an interpretation of Constitution, Statute, Rule. Cases inform those interpretation and are examples of application – Cases help ID what facts to apply

Arguing if something does or does not arise from same transaction Policy – Why the rules are the way they are. Do legal analysis first. Policy can often come in in your conclusion

← SMJ Diversity – Protecting out of state parties from in state bias in state courts FQJ – Lets federal courts have expertise in federal law Constitutional and Statutory Authority

o Challenges are always under the statute, not the constitution (1331, 1332, 1367) Diversity -§1332 – Complete Diversity of Citizenship and Amount in Controversy >75K Strawbridge – Complete Diversity of Citizenship Citizenship determined at time of the filing

o Individual – Physical Presence + Intent to remain indefinitely in new states (Mas)o Corporations – State of Incorporation + PPOB (nerve center)o Non-incorporated entity – Citizenship of all of the members

Greater than $75Ko Based on good faith allegation in the complainto If judgment is under 75K you can get costs shifted but we look at complaint and if

there’s not a legal certainty that party can’t meet 75Ko Aggregation – You can add individual claims for separate injuries against one

defendant Each P must meet amount in controversy against each defendant

o If it’s an injunction, courts look at value of injunction to the plaintiff or monetary cost to D – If either one of those meets amount in controversy, then it’s good to go

FQJ (1331) – Does the claim arise under federal law (staute/constitution)?o Arise Under – (1) Mottley – Well-pled complaint rule – Court will only look to well

plead complaint of plaintiff – Not anticipation of defense, counterclaim, etc.o When does a claim actually arise under federal law?

73

Easy case – Federal law creates cause of action and that’s what plaintiff is suing under

Harder case – Grable – When claim is created under state law but there is a federal issue that arises within that state law claim. If four elements are met, court can determine that it arises under federal law:

(1) state law claim must necessarily raise the federal issue – they’ll definitely need to address federal issue to get to a judgment – essential element to recovery

(2) Federal issue must actually be in dispute (3) Federal issue must be substantial – If law has a federal action,

importance of issue to federal government (tax issues in Grabel) (4) Federal forum may entertain the case without disturbing the

balance between state/federal case Supplemental Jurisdiction (§1367) – Gibbs and Kroger were both codified by §1367

o Arises when you have more than one claim. o Find the anchor claim where there’s federal SMJo Then, identify supplemental claim where there may not be independent SMJo Are claims sufficiently related to comprise a constitutional case (Common Nucleus

of Operative Fact – Gibbs). IF yes, you’ve met part (a) o Then, is the anchor claim a diversity or FQ? If diversity, look to part (b) o Is supplemental claim exempted under part (b) – only PLAINTIFF claims are

exempted by part (b) Would it defeat purpose of §1332 to allow SMJ?

o 1367 allows multiple P to sue one defendant regardless of amount in controversy (Exxon)

o Then, turn to (c) –Court can decline supplemental jurisdiction under 4 circumstances – (1) novel or complex issue of state law; (2) Supplemental claim predominates the case; (3) are all anchor claims dismissed? (4) Exceptional circumstances – compelling reason not to hear supplemental claims (jury confusion, pending action in state court already)

o Court may want to retain claims for efficiency purposes, important policy issues Removal and Remand

o Removal – If P files in state court, D can remove to federal court if there’s SMJ (1331, 3, 67)

If yes, you must properly remove and then remand if it’s done improperlyo All defendants have to join in the removal. If it’s diversity, make sure none of Ds

are citizen of state in which the case is proceedingo Venue provision is inside the removal statute – federal district ct that embraces o Remove within 30 days of receipt of document which says court has SMJo Total window for diversity cases – one year

74

o Remand if removal improper – why? (1) P doesn’t believe there’s SMJ over the case – that can be raised at any time. (2) If removed for any other issue (timing, etc.) you have 30 days to file remand motion

← Venue Closely tied to PJ Venue = finding the most convenient place to litigate the case

o §1391 Three possibilities for venue. Third one is a fallback provision if no venue under (1) or (2).

Part (a) is for diversity, (b) is everything else. Only difference is (3) Do all defendants reside in same state? If yes, then any district in which any of the

defendant resides (citizen). o If you’re a corporation, citizen is a district where the corporation resides

OR where a substantial part of the events gives rise to the claim (Bates) Only if there’s no venue under (1) or (2), then you can use (3)

o (a) – Where any defendant is subject to PJ at time of filing of actiono (b) – Where any defendant is found at time of filing of action

Transfer – 1404, When you start in correct venue but you want to transfer in a better venue. 1406 - You start in an improper venue but court wants to transfer instead of dismiss (for inconvenience and justice – Piper)

Piper is the only common law doctrine we’ve studied – Forum Non Conveniens o Case in federal court, a court is better off in a foreign jurisdictiono Is there an adequate alterative forum outside of the US (not if the law isn’t as good

elsewhere)o Balance factors –where’s evidence, witnesses, burden on parties, etc.

Choice of Law – if you start in proper forum, choice of law follows you (Piper). If you start in wrong venue, you don’t get choice of law

← Pleading Policy theme here is notice Short and plain statement of claim that shows pleader is entitled to relief We allow inconsistent claims to be alleged, as long as there’s a good reason to and let jury

sort out what happened Two kinds of sufficiency tests – Legal and Factual Legal Issues – (1) P has not alleged all elements of claim. If something’s missing, court will

dismiss without prejudice under 12(b)(6). (2) You have all elements alleged but as a matter of law, one of them doesn’t meet the legal requirement – Example is Loss of Consortium

75

Factual Issues – How much detail do you need within each allegation – Twombly, Iqbal. Court accepts as true only the factual allegations, not the legal conclusions. Then, based on facts accepted as true, court will draw all plausible inferences to determine if there’s a plausible claim against defendant

Procedural matter – 12(b)(6), you’re looking at complaint. If they have to look outside of complaint, it’s a summary judgment motion

← Dismissal – Rule 41 Voluntary – any time before an answer is served or by stipulation of party or order of court

o Without prejudice Involuntary – With prejudice – Failure to prosecute claim by P, failure to comply with rules

or failure to comply with court order Whenever a court order is dismissed without saying anything, it’s dismissed WITH

prejudice unless it’s for lack of PJ, failure to join under Rule 19, improper venue← Defendant’s Response

They can do nothing – default judgment then collateral challenge on jurisdiction only, otherwise full faith and credit is given to judgment and can be enforced

Timing – 20 days to do something unless it’s waiver (you have 60 days) Motion under Rule 12(b) or file an answer

o You only get one pre-answer motion (12(g))o If not in motion, you can put them in answer

12(h) talks about which defenses get waived and which don’t. For lack of PJ and improper service, you waive it if its not in motion, answer, or amendment

12(h)(2) – Failure to state a claim can be raised any time through trial. It will be a 12(c) motion

12(h)(3) – SMJ can be raised at any time and by the court sua sponte Answers – 8(b) – Admit, Deny, or Allege lack of sufficient info for every allegation in

complaint. If you don’t, it’s deemed an admission Affirmative Defenses vs. denial – Is some issue an element of the claim or an affirmative

defense. P complaint, D says you didn’t allege all factors, 12(b)(6). P says no it’s an affirmative defense

o How is language of statue written to suggest who has burden of pleading?o Fairness – Who has better access to information

8(c) lists some of the affirmative defenses Example of easement – you have to deny claim and list affirmative defense because it’s

beyond four corners of the complaint and it needs to be raised to give notice 15(a) – One amendment within 20 days or permission of court (liberal standard)

o Fairness factors

76

15(c) – Relation back to amendments – amending complaint to allow a new claim whose SoL has lapsed – If new claim arises out of same transaction, court will allow it (Marsh)

o Again, it’s about notice to he defendant ← Rule 11 – Any time a lawyer files a paper to the court, you are representing that you’ve done a reasonable inquiry under the circumstances and based on this, factual contentions have or will likely have evidentiary support after discovery; (2) allegations are based on a non-frivolous argument (Bridges)

Court has discretion in assigning sanctions to deter the conduct, not to compensate the opposition

Look for willful or negligent behavior, pattern or isolated behavior, big deal or not big deal, what kind of attorney is it

← Procedurally – you have to serve Rule 11 motion on non-moving party and wait 21 days before filing with court. If you don’t wait and party doesn’t raise defense, court can move on it

Court must give party an opportunity to explain their conduct←← Joinder

Policy – Fairness, efficiency, accuracy about getting parties/claims in one case What are joinder rules that govern initial filing of case – Claim joinder (18) – P can bring

any and all claims against D. o Party joinder – Rule 20. Claims against each of joined party must AST and have

common issue of law/facto YOU MUST MEET VENUE, PJ, SMJ FOR ALL CLAIMS/PARTIES

When can defendant join claims/partieso Claims (Rule 13) – Counterclaim (a) – compulsory if AST, (b) permissive – not AST.

13 a + b = Rule 18o Supplemental jurisdiction – if d’s claims do not have independent basis of SMJ they

meet §1367(a) (CNOF) and are not exempted by (b) 13(g) – Crossclaim if claim AST as the original complaint Adding parties – 13(h) – D must have a counterclaim against P or a crossclaim against a co-

party. If they have one of those two, they can add D if relationship between their claim and new D meets Rule 20

o Other way – 14 Impleader Rule – Derivative claims – Where TPD would be liable to D only if D was liable to P – it offsets D’s liability it P

Contribution (Tort), Indemnification (Contract) Rule 21 – Improper Joinder – Severe claims, no dismissal 20(b) and 42 – Court can separate for trial, consolidate

77