PERSONAL JURISDICTION

Constitutional basis: Due Process Clause (14th Amendment)

Individuals presence within the forum state

o Burnham v. Superior Court (US SC, 1990)
Holding: tag jurisdiction; service can be made on out of state resident
while voluntarily in state
Policy: upholding traditional constitutional notions
Service on an airplane okay (Grace v. MacArthur)
Domicile
o Milliken v. Meyer (US SC, 1940)
Holding: Domicile is sufficient to assert jurisdiction
Domicile= current dwelling place + intent to remain
indefinitely
Policy: D owes reciprocal duties for privileges and protection
afforded by state
Consent
o Previously filed suit
PJ over individual who asserted a counterclaim in a previous lawsuit in
that forum

Adam v. Saenger (US SC, 1938)

Filing a lawsuit does not provide a sufficient basis for jurisdiction in a
later lawsuit against the original P concerning the same set of facts
Gibbons v. Brown (FL, 1998)
o Forum selection clauses
Carnival Cruise Lines, Inc. v. Shute (US, 1991)
Holding: forum-selection clauses will be upheld, subject to
judicial scrutiny for fundamental fairness
Policy: cuts court costs for everyone, conserves resources by
dispelling confusionlogical, negotiable, convenient
(limiting fora)
o Are parties sophisticated?
Not a contract of adhesion
o Rule 37 (b)(2)
If discoveree persists in his refusal to grant discovery, then Rule 37 (b)
(2) allows the court a choice of coercive sanctions, among others:
Facts established: it may order that the matters regarding
which the order was made or any other designated facts shall
be taken as established for the purposes of the action in
accordance with the claim of the party obtaining the order
o Insurance Corp. of Ireland v. Compagnie des
Bauxites de Guinee (US, 1982)

Holding: even personal jurisdiction over D may

be taken to be established, if D refuses to
comply with a court order requiring him to
furnish discovery of facts related to the
existence of such jurisdiction

o Cognovit
Party can waive right of notice and appearance
Only granted when party has read and understood it, and received
something in exchange for signing it
o Implied consent
o General appearance
Non-resident motorist statutes
o Non-resident motorists involved in accidents are usually subject to jurisdiction
by act of operating vehicle within state
Tortuous acts committed within the state
Minimum Contacts Test
International Shoe Co. v. Washington (US SC, 1945)

Holding: in order to subject D to jurisdiction, if he is not present in

forum, he must have certain minimum contacts with it such that the
maintenance of the suit does not offend traditional notions of fair
play and substantial justice
Contacts: sales solicitors in state
APPLICABLE TO INDIVIDUALS
Policy: rejects territoriality requirement of Pennoyer in favor of
reasonableness; recognizes growing interstate commerce; recognizes
reciprocal duties of companies to states
Limiting the MCT

Mcgee v. International Life Insurance Co. (US SC, 1957)

Insurance policy written by TX company for CA resident

Contacts: mailing of premiums, assumption of obligation, deceased
and P were CA residents, witnesses, offices and solicitation
Holding: contacts sufficient for MCT
D reached into CA for business
o least contacts in SC historynone in-state
Policy: CA protecting its citizens
Hanson v. Denckla (US SC, 1958)
Holding: unilateral activity is not sufficient for MCT
o There was no purposeful availment
o Unlike McGee, claims contacts were initiated by settlor, not D
Absorbing QIR
Shaffer v. Heitner (US SC, 1977)
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 ULTIMATE CURTAILMENT OF QUASI IN REM

JURISDICTION
ATTACHED PROPERTY (PRECEDENT
INTANGIBLE) IS JUST ANOTHER CONTACT
o STILL MUST BE ATTACHED THOUGH
In rem jurisdiction still exists
o IR suits do not seek to impose personal liability on
anyone, but instead seek to affect the interests of
persons in a specific thing
SHOE APPLIES TO INDIVUALS AS WELL AS
CORPORTATIONS
Holding: quasi in rem jurisdiction over D could not be exercised
unless D had such minimum contacts with the forum state that in
personam jurisdiction could be exercised over him under Shoe
Attached stocks only serve as a contact
MCT in domestic relations cases
Kulko v. Superior Court (US SC, 1978)
Holding: permission to let children move to CA was not sufficient for
father to past MCT in CA
o Contacts: Unilateral activity (daughter WANTED to go);
temporary visits or marriage in-statenot sufficient
Policy: even though CA had strong interest, there was a statute
providing other methods for the wife to get payment
Establishing MCT via the Internet

Coastal Video Communications Corp. v. The Staywell Corp. (VA, 1999)

Holding: remanded
Contacts to consider: store front capability of website (advertising,
soliciting, sales, customer service, interactionlike having a sales rep.
there), maintenance of traditional business contacts in forum, website
info (sales to the state [dollars; percentage of total profit; number of
products; customers; number of sales]); accessibility to forum state
(hits, etc)
Establishing MCT in claims unrelated to in-state activity

Perkins v. Benguet Consolidated Mining Co. (US, 1952)

Holding: presidents activities were continuous and systematic

enough as to exercise jurisdiction
Contacts: office files, board meetings, salary checks, transactions,
correspondence, supervision, policymaking, bank accounts
discharged duties as president from OH
Policy: fairness
Establishing MCT for claims involving in-state purchases

 Helicopteros Nactionales de Colombia, S.A. v. Hall (US SC, 1984)

Holding: wrongful death claims did not arise out of Ds in-Texas

activities; therefore, the issue was whether those activities constituted
the kind of continuous and systematic general business contacts the
court found in Perkinsthey did not
o Contacts: single negotiating session not enough; receipt of
checks was unilateral activity of another party as to where
checks will be drawn; sending of personnel to train had no
independent significance (it was part of the package). Lastly,
mere purchases, even if occurring at regular intervals are not
enough to exercise jurisdiction in cause of action not related to
those purchase transactions

MCT
no contactsno jurisdiction
casual or isolated (unrelated)no jurisdiction
isolated (related)jurisdiction possible
single actjurisdiction (specific)
continuous but limitedjurisdiction (specific)
substantial or pervasivejurisdiction (general)
Effects as contacts
National Inquirer v. Calder (US SC, 1984)

Knowledge that what they write from Miami would affect people in
CA
o Specific jurisdiction
Keeton v. Hustler (US SC, 1984)
Enough subscribers in NH allowed for suit
o Specific jurisdiction
World-Wide Volkswagen v. Woodson (US SC, 1980)

Limiting long-arm provisions in product liability suits. Product must not just
find its way into the forum, to be sufficient for MCT there must be some
effort to market it in forum state, either directly or indirectly.
Holding: the foreseeability that is critical to due process analysis is not the
mere likelihood that a product will find its way into the forum state. Rather it
is that Ds conduct and connection with the forum state are such that he should
reasonably anticipate being hailed to court there
Ds purposely availed themselves of no benefits of the forum state
o No cars were injected into that stream of commerce
if D made efforts to serve directly or indirectly the market for its
products jurisdiction is okay, but if it was an isolated and unilateral
occurrence then jurisdiction cannot be exercised

o if user takes production into forum state it is not enough to

confer jurisdiction over manufacturer, even if this was
foreseeable
Awareness of sales in a foreign state

Asahi Metal Industry Co. v. Superior Court (US SC, 1987)

Holding: despite minimum contacts, it would be unreasonable and

unfair for CA to hear the case because of: the burden to Asahi of
defending in a foreign legal system, the slenderness of CAs and Cheng
Shins interests in having the indemnity claim heard in CA, and the
strong federal and state interest in not creating foreign relations
problems by deciding an indemnity claims between two foreign Ds
Reasonableness: sufficient minimum contacts defeated by violation of
traditional notions of fair play and substantial justice
o Reasonableness factors: burden on D, interests of the
forum state, Ps interest in obtaining relief, interstate
judicial systems interest in obtaining the most efficient
resolution of controversies, and the shared interest of
several States in furthering substantive social policies
Exceptional case
Court split: if it is foreseeable that a given product will be swept in
the stream of commerce into a specific forum does that satisfy
MCT in that state for D?
Suits based on a contractual relationship

Burger King Corp. v. Rudzewicz (US SC, 1985)

Holding: although the mere fact that one party to the contract is a
resident of the forum state does not by itself mean that the other party
has minimum contacts with that state, the whole contractual
relationship may well, in a particular case, be sufficient to confer
jurisdiction
Choice-of-law clause: D signed contract with BK to use FL lawthus
he has availed himself of the benefits of that states law
o D was not surprised
o D was not subject to fraud, undue influence, or overweening
bargaining power
o Reasonable anticipation of out-of-state litigation
Explicit endorsement of aggregation of contacts
Creates two-prong test: MCT & FP + SJ
Policy: predictability, fair warning

LONG-ARM STATUTES

These limits are not required by the Constitution

FRCP 4(k)(1)(A): in both diversity actions and federal question cases,

service of process may be made only
o Within the territorial limits of the state in which the District Court sits
OR
o Anywhere else that the long-arm of the state where the District Court
sits permits
Service out of state
o FRCP 4(k)(1)(A): service outside the state where the District Court
sits may be made if the law of that state so permits
100-mile bulge
o FRCP 4(k)(1)(B): a special 100-mile bulge allows for out-of-state
services sometimes, even if local law does not permit it. When the
provision applies, it allows service anywhere (even across a state
boundary) within a 100-mile radius of the federal courthouse where
suit is pending. The bulge provision applies only where out-of staters
will be brought in as additional parties to an already pending action.
Possible parties:
Third-party defendants
Necessary parties
most federal courts seem to hold that D may be required to
defend so long as he is reachable by the long-arm of the state
where service is made (i.e. the bulge state), even if he could
not be reached according to the law of the state where the
federal suit is pending
Where authorized by federal statute
o FRCP 4(k)(1)(C) provides for certain cases a nationwide service of
process
i.e. parties subject to interpleader jurisdiction
Foreign defendant not servable in any state
o FRCP 4(k)(2): For a claim that arises under federal lawserving a
summons establishes personal jurisdiction over D if:
(A): D is not subject to jurisdiction in any state court of general
jurisdiction AND
(B): Exercising jurisdiction is consistent with US constitution
and laws
aggregation of contacts
if there is enough contacts within US as a whole, then
jurisdiction can be held in every state as long as its
constitutionally permissible
In rem jurisdiction possible if allowed by state
FRCP 4(n)
Gaps possible
o When personal service within the state the state long-arm, 100 mile
bulge, special nationwide-service provision, or 4(k)(2) do not apply
Even if D has constitutionally-required minimum contacts
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NOTICE

After determining that the party has PJyou must determine if notice was
constitutional and authorized by statute
o Reasonableness test (reasonable calculation)
D does not actually have to learn of the suit, what matters is that the
method used is reasonably likely to inform him
Mullane v. Central Hanover Bank (US SC, 1950)
Holding:
o Notice is limited by considerations of economy and
reasonableness
Publication is insufficient for those whose
names and addresses are know
Pennoyer
Publication is sufficient for those who are
unknown or unlocatable
o General reasonableness in view of all the
circumstances
Cost, importance of proceedings, availability
of other, better notification methods, etc.
o Individual
Summons and complaint included
FRCP 4(c)(1)
Service must be by a non-party over 18
FRCP 4(c)(2)
Personal
By serving him personally
FRCP 4(e)(2)(A)
Substitute
Often allowed by mail
By leaving summons and complaint at Ds residence with a
person of suitable age and discretion residing there FRCP
4(e)(2)(B)
o Green v. Lindsey (US, 1982)
Holding: eviction notices posted on doors of
tenant was not sufficient service because of the
substantial risks of children tearing them
downmail service should have been used
wasnt reasonably calculated
Agent
By serving a state official appointed or designated by law to
receive process
FRCP 4(e)(2)(C)
Local state law
FRCP 4(e)(1)
by serving D in the manner provided by either

1. the law of the state where the District court sits, if that
state has such a provision OR
2. in the manner provided by the law of the state where the
person is being served
Foreign defendants
FRCP 4(f)
o Any method allowed by a particular international treaty (the
Hague Convention) or any method allowed by the country
where service occurs can be used
o Corporation
o Manner provided by state where action is pending or where service is
made
FRCP 4(h)(1)(A)
o Service on a corporation may be made by leaving the papers with an
officer, a managing or general agent, or any other agent authorized by
appointment or law to receive process for the corporation FRCP
4(h)(1)(B)
o Manner provided by law of the state where action is pending or the
law of the state where service is made FRCP 4 (h)(1)(A)
o Special rules for serving foreign corporations
FRCP 4 (h)
(2)
o Waiver of service
FRCP 4 (d): allows P to in effect serve the summons and complaint
by mail, provided that the D cooperates. Actually, what P does is mail
D a request for waiver of service; if D agrees, no actual in person
service is needed.
Policy: the rule gives D financial and other incentives to grant
to waiver request
Procedure
P sends notice that action is being commenced, two
copies of waiver-of-service form, a copy of complaint,
and a prepaid return envelope. FRCP 4 (d)(1)(C)
The documents may be sent by first-class mail or other
reliable means
FRCP 4 (d)(1)(G)
Date must be stated
FRCP 4 (d)(1)(E)
Time to respond
D has 30 days to respond to request for waiver (60 for
foreign D)
FRCP 4 (d)(1)(F)
Incentives
Additional time to answer
o D gets 60 days following the date on which the
request for waiver was sent, in which to answer
the complaint (compared with 20 days from
service process, provided by FRCP 12(a).
Foreign Ds get 90 days.
D must pay costs of service if he does not waive

o The court must impose on D the expenses later

incurred in making service, and the costs of any
motion to collect those service expenses
FRCP 4(d)(2)
Apply only to US Ds
Waiver of service does not waive personal jurisdiction or venue
FRCP 4(d)(5)
o Time for service
Service must be made within 120 days after the filing of the complaint
FRCP 4(m)
OPPORTUNITY TO BE HEARD

Before property is taken, D must be given a chance to defend against the claim
Pre-judgment remedies (protect P from D squandering assets before litigation
is over)
i.e. attachment
Three part balancing test to determine whether due process was violated when
Ds property was interfered with through a pre-judgment remedy
1. Harm to Ds interest from pre-judgment remedy
2. Risks of erroneous deprivation of Ds property rights
o Especially if additional procedural safeguards were not used
3. Strength of interest of P
o Connecticut v. Doehr (US SC, 1991)

DEFENSES TO CLAIMS OF JURISDICTION

Special appearance
o Now FRCP 12(b)(2) which allows D to make a motion to dismiss for lack of
jurisdiction over the parties; making this motion does not subject D to the
jurisdiction that he is protesting
Collateral attack
o If D defaults in an action in State 1, she may collaterally attack the default
judgment when it is sued upon in State 2. Most commonly, D collaterally
attacks the earlier judgment on grounds that State 1 did not have personal
jurisdiction over her, or did not have valid subject matter jurisdiction.

VENUE

CONSIDER AFTER PJ AND SERVICE

o Venue locates jurisdiction within a particular district of a state
Venue in State action
o In state trials, venue is determined by statute

Venue is generally authorized based on where D resides or where the

cause of action arose
Forum non conveniens
State may use its discretion not to hear the case in a county
where there is statutory venue
o It is the D who often moves to have a case dismissed or
transferred under FNC
Three factors: (1) if P is a state resident; (2) if
witnesses are more available elsewhere; (3)
whether forums own state laws will govern
(transfer is more likely if they do not)
Piper Aircraft Co. v. Reyno (US SC, 1981)
Holding: the mere fact that the law of the
alternative forum is less favorable to P is
ordinarily not by itself grounds for
denying Ds FNC motion
o However, if alt. forum was so
clearly inadequate or
unsatisfactory that it is no
remedy at all, then the
unfavorable change in law could
be given substantial weight in
FNC decision

Venue in federal actions

o 28 USC 1391(a)DJ, (b)FQJ
1. If any D resides in that district, and all Ds reside in the state containing
that district
Residence=domicile
2. If a substantial part of the events or omissions giving rise to the claim
occurred, or substantial parts of property that is the subject of the action is
situated in the district
3. If nowhere else, where any D can be found (sufficient MCT)catch all
escape hatch
Main utility of these escape hatches are for events where Ds reside
in different states and the events occurred mostly abroad
Corporations (not businesses)
apply 28 USC 1391(a)DJ, (b)FQJ
28 USC 1391 (c): a corporation is a resident of any district as to
which it would have minimum contacts necessary to support PJ if that
district were a separate state
corporation will be a resident of at least where:
it has its principle place of business
10

 any district where it has substantial operations

probably any district in its state of incorporation
corporation may be resident of more than one district
interesting twist: if corp. has residence in two districts
in two states, and D2 is resident in one of those states,
then D2 could be brought in the out-of-state district in
which D1 resides
28 USC 1391 (d)aliens

any alien may be sued in any district of the United States where he has

jurisdiction
alien can be used to defeat subsection (1)
forum selection clauses

28 USC 1404 (a)...federal venue transfer

judge has discretion
burden is on the movant
Gulf Oil v. Gilbert (US SC, 1947)
Holding: unless the balance is strongly in favor of D,
Ps choice of forum should rarely be disturbed
for the convenience of parties and witnesses,a district court may
transfer any civil action to any other district or division where it might
have been brought
1404(a)
where it might have been brought
transfer by P may be only made to a district where D
could have initially been served with process (pursuant
to the long-arm of the state encompassing that district).
Also, the district to which the action is transferred must
be one in which venue would originally have been
proper (as specified by 1391)
transfer by D may only be made to those districts
where P would have had the right, independent of the
wishes of D, to bring the action. This clearly
establishes that consent by D will not permit transfer to
a forum where the action could not have originally
commenced.
Hoffman v. Blaski (US SC, 1960)
o Policy: Praised for limiting forum
shopping for Ds, criticized for limiting
utility of 1404(a)
So if a suit in a particular district would not
have been possible, as an initial matter, because
one or more Ds could not be personally served

11

there, or because venue would not have been

proper there, even the consent by all Ds would
not authorize the action to be transferred to that
district.

28 USC 1404 (c)

you can transfer divisions within a district
Choice of law
The state law of the transferor court is to be applied to the
transferee court
Van Dusen v. Barrack (US SC, 1964)

If D moves to transfer
Policy: D does not get bonus change of law for

changing courtrooms (forum-shopping); P

maintains state law advantages from forumselection privilege; may indirectly create forum
shopping in Ps; may cause judges to be
dishonest when Ps ability to recover changes
Ferens v. John Deere Co. (US SC, 1990)

If P moves to transfer

28 USC 1406(a)
transfer to a district where it could have been brought when a suit is
brought in a district where venue is improper
also, if the court applying 1406 decides it lacks not only venue
but also personal jurisdiction, the court may probably
nonetheless order the transfer
here, law of transferor court does not apply
above precedent is related to 1404 only
SUBJECT MATTER JURISDICTION
ALL YOU NEED IS FEDERAL QUESTION JURISIDICTION OR DIVERSITY
JURISIDICTION TO BRING A MATTER INTO FEDERAL COURT

states have broader SMJ

concurrent jurisdictionwhen states and federal courts can hear the same case

Article III of the Constitutionjudicial powers should extend too

1. Arising under
FEDERAL QUESTION
2. Ambassadors
3. Admiralty
4. U.S. as a party

12

5. 2 states
6. between a state and citizens of another state
7. between citizens of different states
DIVERSITY
8. land grants
9. alienage
Ruhrgas, AG v. Marathon Oil Corp.
Holding: Subject matter jurisdiction and personal jurisdiction can be addressed in
any order
FEDERAL QUESTION JURISDICTION
Jurisdiction extends to all civil actions arising under the Constitution, law, or treaties
of the United States
28 USC 1331
o Similar language to Article III
o Interpretation of the state has been narrower than that given to the
Constitutional language (which applies not only to original, but also to
appellate, jurisdiction)
o No adequate definition
SCin order for a FQ to exist, it must be the case either that federal
law creates the cause of action or that Ps right to relief necessarily
depends on resolution of a substantial question of federal law.
Franchise Tax Bd. V. Construction Laborers Vacation Trust
o State-created claim
Claim being asserted is one created by state law, but adjudication of
that requires interpretation of a federal law. SC held that this is no
sufficient to bring the case within the FQJ. In fact, if Congress in
passing a federal statute decides that there should not be a private right
of action for violation of that statute, a state-created cause of action
that alleges a violation of the federal statute as a an element of he
state-law will never be construed to arise under the Constitution, law,
or treaties of the United States
Merrill Dow Pharmaceuticals, Inc. v. Thompson (above and
below)
o SC held that there was no FQJ because Congress, when
it passed the FDCA, expressly decided that there should
be no private right of action for violations of the FDCA.
Given this congressional decision, it would undermine
the congressional scheme for the federal courts to
exercise FQJ, and provide remedies for a violation of
that statute, solely because the violation creates a
rebuttable presumption for negligence under state law.
Brief overview of when state law creates the cause of action in FQJ
Mottley

13

If state law creates the cause of action.no federal question

jurisdiction
o Smith exception (Smith v. Kansas City Title & Trust
Co.)
Unless state law necessarily implicates federal
lawfederal question jurisdiction
Holding: Court held that the claim satisfied
arising-under jurisdiction, since the
controversy concerns the constitutional validity
of an act of Congress which is directly drawn in
question. This decision depends upon the
determination of this issue.
Merill Dow exception to the exception
o Unless Congress has a clear
intent not to create a federal
cause of action (when state law
necessarily implicates federal
law).no federal question
jurisdiction

o Anticipation of defense insufficient

The federal question must be part of a well pleaded complaint
(minimum complaint)
Louisville & Nashville R.R. v. Mottley
o SC held no FQJ existed, because the federal statute was
not essential to Ps cause of action. It is not sufficient
that the complaint mentions some anticipated defense
and asserts that the validity of the defense is governed
by federal law.
o Because the constitutional meaning of arising under
is broader than its statutory meaning, the SC (operating
under the broader constitutional definition) had
jurisdiction to hear and decide Mottley the second time
around, even though it previously decided that the
district court (operating under the narrower statutory
definition) did not have jurisdiction.
o Claim based on the merits
If Ps claim is clearly based upon federal law, it qualifies for FQJ even
if it is invalid on the merits. In this situation, the federal court will
dismiss for failure to state a claim on which relief may be granted
(Rule 12(b)(6)), not for lack of SMJ.
Insubstantial claim: however, if the federal claim is clearly
made solely for the purpose of obtaining jurisdiction, or is
wholly insubstantial and frivolous, the court will dismiss for
lack of FQJ.

14

Supplemental claimssignificance of type of dismissal

selected from the 2 listed above
o As a matter of SMJ, the federal court can (though need
not) hear the state-created supplemental claim even if it
dismisses the federal-law claim for failure under Rule
12(b)(6); but it cant hear the supplemental claim if it
has no SMJ over what is falsely alleged to be the FQ
claim.

DIVERSITY JURISDICTION
Controversies between citizens of different states
Article III, 28 USC
1332(a)(1)
o Rationale: attempting to defeat local prejudice
Amount in controversy
o Only in diversity cases
o More than $75,000
Not based on judgment, but Ps good faith pleading that he could get
more than $75,000
Interest not included
Eventual amount of recovery irrelevant
But federal court has discretion to deny costs to P, and even to
impose costs on him if he recovers less than $75,000 1332(b)
o Aggregation of claims
You can aggregate claims of plaintiffs against one D in a cause of
action
No claim must exceed $75,000just the aggregate does
Cannot aggregate claims against multiple Ds
Aggregation by multiple Ps
At least one P meets amountokay
o Supplemental jurisdiction.Exxon
No single claim meets the amount.usually not okay
o Exception: two or more Ps unite to enforce a single title
or right in which they have a common and undivided
interest
Special rule for class actions
o As long as one class rep. meets the $75,000
requirement, the others do not have toSJ (Exxon)
o OR class actions with $5 million or more can forward
even if no individual meets the $75,000 requirement
1332 (d)(2)
Counterclaims
If P sues in federal court for less than the jurisdictional amount,
and D counterclaims for an amount which (either by itself or
15

added to Ps claim) exceeds the jurisdictional amount, probably

the amount in controversy requirement is not met
Removal by D: if P originally sues in state court for less than
$75,000, and D tries to remove to federal court, amount in
controversy problems work out as follows
o P removal: P may never remove, even if D
counterclaims against him for more than $75,000
o D removal: if D counterclaims for more than $75,000,
but Ps original claim was for less than $75,000, the
result depends on the type of counterclaim. If Ds
counterclaim was permissive (under state law), all
courts agree that D may not remove. If Ds claim was
compulsory under state law, courts are split about
whether D may remove.

Date for determining

o At the time lawsuit is filed
o No later change cannot create or defeat diversity
Complete diversity is required
o no plaintiff is a citizen of the same state as any defendant
Strawbridge v. Curtiss (Cranch, 1807)
o Exceptions not requiring complete jurisdiction
Article III
Interpleader statute
1335(a)(1)
High-stakes class actions
1332(d)(2)(A)
More than $5 million is involved
Pleadings not dispositive
o Court looks past pleadings and arranges parties to their real interests
Nominal parties ignored
Court may dismiss nominal parties
Representatives and administrators will generally be treated as having
the citizenship of the party they represent 1332(c)(2)
Refusal to exercise jurisdiction
o Improper or collusive joinder of parties
o Domestic relations is the main subject matter
Ankenbrandt v. Richards (US SC, 1992)
o Where probate matters are the essence of the suit
o Where abstention doctrine is invokedcourts docket is too congested
Domicile, not residence, is what counts
o Last place one has lived with an intent to remain
Domicile does not change unless one moves to a place in which he
intends to reside in indefinitelythus, creating an anomaly in which
one may be domiciled in a place he no longer resides nor plans to
reside in the future
Mas v. Perry
o Resident aliencitizen of whatever state domiciled
1332(a)
16

Alienage jurisdiction
1332(a)(2)
Citizen of a state v. aliendiversity jurisdiction
1332(a)(2)
US citizens domiciled abroad cannot sue on or be sued under
DJthey retain US citizenship, but lose state citizenship
o Elizabeth Taylor
Alien v. alienno diversity jurisdiction
Foreign + US v. Foreignno diversity jurisdiction
Resident alien v. non-resident aliensplit courts
Literal reading says yes
1332(a), 1332(a)(2)
Most courts say noconstitutional problems
o Congress did not intend to grant DJ for suits in which
all parties are alien.probably unconstitutional
o Saadeh v. Farouki
Holding: legislative intent1332(a) limits DJ,
it does not expand DJ
US judicial power does not extend under
Art. III to suits involving two aliens (by
constitutional definition, not that of
1332)
aliens and US citizens present on each side does not destroy DJ as long
as US citizens from different states are in opposition
1332(a)(3)
Diversity involving partnerships and corporations
o Partnerships, unincorporated associations do not have a single state of
citizenship, every member counts
Carden v. Arkoma Associates
o Corporation is deemed a citizen of any state where it is incorporated and of
the state where it has its principle place of business
1332(c)
No adversary in DJ can be a citizen of the state where it is
incorporated OR where it has its principle place of business
Principle place of business: (1) corporate headquarters, home
office OR (2) where bulk of activity is
Devices to create or destroy jurisdiction
o Improperly or collusively joined parties not allowed DJ
1359
Assignment of claims
Kramer v. Caribbean Mills
o Holding: assignment claim made solely for the purpose
of creating jurisdiction, thus making it improper and
collusive under 1359, and therefore DJ was void
Failure to name indispensible parties
Devices to defeat removal to federal court
o No federal statute prohibiting improper or collusive joinder to defeat
jurisdiction
Assignment of part of claim

17

Courts are split on handling this

Removal may not be defeated by Ps joinder of D as a party against
whom no bonafide claim exists
Rose v. Giamatti
o Holding: removal to federal court is proper because Ds
joined by P to defeat it are irrelevant
Low dollar claim usually works
Make the claim less than $75,000

SUPPLEMENTAL JURISDICTION
Additional claims and parties may be brought into a federal case without
independently satisfying subject matter jurisdictional requirements, once there is a
basic controversy as to which there is subject matter jurisdiction
1990 amendments added 28 USC 1367, which established the doctrine of
supplemental jurisdiction by reworking and combining two older judge-made
doctrines, ancillary jurisdiction and pendent jurisdiction
o pendent jurisdiction
if a federal court had jurisdiction over a federal question claim
between two parties, it could sometimes adjudicate a state-created
claim between those same parties, even though it would not have
jurisdiction if the claim were brought separately
used in situations where parties were citizens of the same
state, so that diversity did not exist. In such a situation, P
could gain a federal forum for her state-created claim by
linking it to a federal question claim, provided that the two
claims were sufficiently closely related to justify use of the
pendant doctrine.
Must be similar:
o United Mine Workers v. Gibbs (US SC, 1966)
Holding: state and federal claims must derive
from a common nucleus of operative fact,
and must be so closely related that usually a P
would be expected to try them all in one
judicial proceeding.
Initially perceived to mean that both
claims must arise out of the same event
or transaction
Constitutional basis
o common nucleus of operative
fact
o defining limitation from Article
III
Federal common lawdoctrine of
discretiondistrict court may

18

dismiss (appellate court can still

review for abuse-of-discretion)
o If state-claim predominates,
dismissing the state claim is
appropriate
o Predominates:
Prooffacts
Lawissues raised, state
law is to be resolved by
state law
Remedyif remedy is
much greater for state law
claim
If federal claim is dismissed before
trial, then the state claim must be
dismissed as well
o But, if jury finds for P on state
claim and D on federal claim
we do not dismiss state claim
We dont need to do the
trial again
If we have a federal claim and a state
claim [that] is closely tied to federal
policy we must keep the claims
together in federal court (even if the
state law claim is preemptive of the
defense)

Pendent party jurisdiction

Additional party against whom the state-law claim was
brought, but who was not a D to the federal-law claim, could
be made to defend the state-law claim in federal court, even
though she was not a D to any federal-law, and thus was not a
D to any claim for which there was independent federal SJM
Originally restricted by case law in Finlay

Additional parties to the state-law claim could

only be brought in if Congress affirmatively

indicated that it wanted those parties brought in
However, SJ reversed this -- new parties may be
brought in to defend against the state-law claims even
though they dont independently satisfy FSJM
requirements
Ancillary jurisdiction

Line between this and pendent jurisdiction as always somewhat blurry

19

 Used in cases where there was diversity jurisdiction for at least one
claim between one P and one D, and additional parties, or additional
claims, were sought to be joined to that core claim. Mostly, AJ has
been used to give the federal courts jurisdiction over certain types of
claims made by parties other than the plaintiff, claims as to which
there would not be independent federal SJM because of either lack of
diversity or failure to meet the amount in controversy.
i.e. cross-claims between defendants
note: AJ eliminates amount in controversy requirement
generally not allowed for Ps
Owen Equipment & Erection Co. v. Kroger

Holding: a diversity P may not use AJ doctrine in a

claim against a third-party D
Policy: otherwise, P could defeat the statutory
requirement of complete diversity by the simple
expedient of suing only those Ds who were of
diverse citizenship and waiting for them to
implead non-diverse Ds
This distinction is maintained in 1367

The present supplemental provision

1367
a. in any civil actions of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of the US
Constitution. Such SJ shall include claims that involve joinder or
intervention of additional parties
FEDERAL COURTS MUST HAVE ORIGINAL JURISDICTION

SJ ALLOWED TO MAXIMUM EXTENT

CONSTITUTIONALLY PERMISSABLEEXCEPT FOR
SUBTRACTIONS
core of the rule

so related:
like UMW
two claims would be part of the same case or controversy if
they derive from a common nucleus of operative fact, i.e.
derive from the same transaction or occurrence
otherwise the claim will be dismissed, and the case
goes on without it
Policy: keep litigation together
Similar claims in one lawsuit
federal question cases
20

 Basically codifies pendent jurisdiction concept

However, overturns restrictions imposed by Finley
Key part of the rule

Broader jurisdiction; no restrictions

joinderadditional parties

b. excludes claims and parties in diversity-only matters

WE MUST HAVE COMPLETE DIVERSITY FOR ALL CLAIMS
INITIALLY FILING TOGETHER 1332
THE SUBTRACTIONSthe test for allowing SJ
Subtract if (must meet ALL requirements to NOT be
allowed SJ):
Diversity-only case

Claim by P
Against third-party D under FRCP 14,19,20,24
Claim against someone added after beginning
and not as a P
inconsistent with diversity requirements

Citizenship and amount in controversy

corresponds to AJ
essentially codifies Owen Equipmentadditional claims by Ps are
severely restricted
Policy: in diversity-only actions the district courts may not hear Ps
supplemental claims when exercising supplemental jurisdiction would
encourage Ps to evade the jurisdictional requirement of 1332 by the
simple expedient of naming initially only those Ds whose joinder
satisfies section 1332s requirements and later adding claims not
within original federal jurisdiction against other Ds who have
intervened or been joined on a supplemental basis.
Not allowed if it provides means to evade DJ
Excluded claims and parties
Claims against third-party Ds by Ps
Claims made by P against a third-party D, pursuant to
Rule 14(a)
Compulsory joinder
Rule 19(a) covers the joinder of persons to be joined if
feasible. Neither a claim against such a person, nor a
claim by that person, comes within the SJ in a diversityonly case.
Rule 20 joinder of Ds

21

 SJ also does not apply in diversity-only cases for claims

by Ps against parties permissively joined as Ds
pursuant to Rule 20
Claims by Rule 20 Ps not excluded

Here, 1367 does not bar SJ

Intervention
Claims by prospective Ps who try to intervene under
Rule 24 do no get the benefit of SJ
Claims still allowed
Compulsory counterclaims
Rule 13 compulsory counterclaims
Additional parties to compulsory counterclaims
Rule 13 (h) joinder of additional parties to compulsory
counterclaims
Multiple Ps joined under Rule 20
Multiple Ps who join together under Rule 20s
permissive joinder provision.
SJ applies for amount-in-controversy purposes
(the sum of the claim must be over $75,000, not
each Ds claim), but does not apply so as to
remove the requirement of complete diversity
Class action Ps
Joinder of Ps for Rule 23 class actions based on
diversity
If one or more Ps meet diversity and amount in
controversy requirements, the unnamed Ps dont
need to meet these requirements, because they
fall within the courts SJ
Cross-claims
Rule 13(g) cross claims

i.e. claims by one D against another

Impleader
Rule 14 impleader of third-party Ds (for claims by and
against third party Ps, and claims by third-party Ds, but
not claims by the original P against third-party Ds)
Aggregation to satisfy the amount in controversy (the Allapattah
caseUS SC)
Question:
Whether, in a diversity case, Ps who did not
individually meet the amount in controversy

22

requirement could use SJ to join together permissively

with one or more Ps who did not meet the requirement
SC answered this question affirmatively by a 5-4 vote
in Exxon Mobile Corp. v. Allapattah Services, Inc.
Court held that one P could ride anothers coattails as to
amount-in controversy in two scenarios:
1. The Ps join permissively under FRCP 20
2. Ps are members of a P class action under FRCP
23
Exxon Mobile Corp. v. Allapattah Services, Inc.

Holding: when the well-pleaded complaint contains at least one claim

by a representative of the class that satisfies the amount-incontroversy requirement, and there are no other relevant jurisdictional
defects, the district court has original jurisdiction over that claim.
No other jurisdictional defects: complete diversity present;
single case or controversy
if court has original jurisdiction over a single claim in the
complaint, it has original jurisdiction over a civil action
within the meaning 1367(a), even if the civil action over which
it has jurisdiction comprises fewer claims than were included
in the complaint.
Majority
1367 rejected Zahn
Zahn
Each class member has to meet the amount in
controversy
Second rule
Only class rep. must meet diversity of citizen
requirement
Rejected:
Indivisibility theoryunder which the district court would be
deemed to have OJ over a CA only if the court had OJ over
every claim in the complaint. Majority felt as though this was
inconsistent with SJ.
Contamination theoryby which the inclusion of a claim or
party falling outside the district courts original jurisdiction
(destroys complete diversity) somehow contaminates every
other claim in the complaint, depriving the court of original
jurisdiction over any of these claims
Might have merit when used to justify the requirement
of complete diversity
P (Md).state 100k.D (Va)
Q (Va)state 100kD (Va)

23

o No jurisdiction over either claim because there is

not complete diversity
Requirement is designed to ensure that the dispute
is sufficiently important to justify a federal-court
forumfairness
However, the presence of a claim that falls
short of the minimum amount in controversy
does nothing to reduce the importance of the
claims that do meet this requirement
Does not have merit when used to justify the requirement
of amount in controversyonly named member has to
meet the amount in controversy
Class rep (X)state >75kD (Y)
Class members (# of states)<50kD (Y)
Second claim can be added by SJ

IN A CLASS ACTION LAWSUIT, ONLY THE

CLASS REPRESENTATIVE HAS TO MEET

THE DIVERSITY REQUIREMENT
EXXON HOLDS THAT IN A CLASS ACTION
LAWSUIT ONLY ONE MEMBER MUST
MEET THE AMOUNT IN CONTROVERSY
REQUIREMENT
P (Md)state 100kD (Va)
Q (Md)state 50kD (Va)
Second claim can be added by SJ

Majority believed their interpretation of the statute is consistent with

Congresss intentions because they provide a textualist interpretation
Then, the textualists should really go all the way and say 1367
abrogated complete diversity
o Thus overturning Strawbridge
Majority believed that legislative history supports their claims

Dissent
o Alternative reading
Dismiss parties not satisfying 1332 before we even get to whether we
can apply 1367
Preserves ancillary and pendent jurisdiction
Resolved in favor of continuity
o Majority read statute too broadly
Significance

24

o Narrow piece of statutory interpretation. It establishes merely that Rule

20 co-Ps and Rule 23 unnamed P class members can use SJ to get around
amount-in-controversy problems in diversity-only cases, as long as one
Rule 20 co-P or one Rule 23 named class member (often the class rep.)
does meet the jurisdictional amount.
o Does not dispense with complete diversity
Discretionary rejection of SJ
1367(c)

Essentially codifies Gibbsgiving district courts discretion over the state

claim
1. The claim raises a novel or complex issue of State law
2. The claim substantially predominates over the claim or claims over
which [the district court] has original jurisdiction, OR
State claim may be dismissed
3. The district court has dismissed all claims over which it has original
jurisdiction
One especially important factor here is timethe later the
dismissal the better the chance of the court keeping the claim
Hypothetically, the district court could still hear a state claim even
though a federal claim was dismissed before trial
Policy: judicial economy, fairness to P
o No reason to start all over in state court
4. In exceptional circumstances, there are other compelling reasons for
declining jurisdiction
rare
o Must fall into 1 of the 4 classes in order for the court to dismiss
o The exceptional circumstances catch-all
Provides some flexibility, but the court has to carefully
justify a dismissal based on the catch-all
o No effect on personal jurisdiction
o PJ and service still requiredSJ speaks only to SJM
REMOVAL JURISDICTION
You can only remove from state to federal, NOT federal to state
Generally, any action brought in state court of which federal courts would have
had original jurisdiction may be removed by D to federal district court
o Exception
In diversity-only cases, the action is removable only if no D is a
citizen of the state in which the action was brought
1441(b)

25

Rationale:
o DJ concerns out-of-state bias, here removal would not
defeat out-of-state bias
Removal statute
1441
o When a case is removed, it passes to the district court of the US for the
district and division of the place where [the state] action is pending. only
cases which could originally have been brought in the federal courts may
be removed
1441(a)
You must analyze original jurisdiction
FQ cases may be removed regardless of citizenship or residence of
the parties
1441(b)
In diversity-only cases, if D is a citizen of forum state, then
removal is improper
1441(b)
Otherwise, it is fine
Exception
o Class actions
Removal is allowed even if one or more Ds are
citizens of the state where the action was
originally filed 1453(b)
Whenever a separate and independent claim or cause of action,
within the [courts federal question] jurisdiction, is joined with one
or more otherwise non-removable claims, the entire case may be
removed and the district court may determine all issues therein
1441(c)
Rules of original jurisdiction apply to removal jurisdiction
o FQJ
FQ must be in well-pleaded complaint
Caterpillar, Inc. v. Williams (US SC)
o Ps claim contained a state law claim and the defense
would contain a federal claim. Court held that case
could not be removed to federal court on claim not in
Ps well-pleaded complaint
o Exception to the well-pleaded complaint rule
Complete pre-emption
If pre-emption is so clear that court will
interpret the complaint according to
federal law (as opposed to the state law
being put forth).
Levels of pre-emption
o No preemption
Stays in state court
o Pre-emption
Stays in state court, might
be heard to federal court.

26

o Complete preemption
Can be heard in federal
court.
o DJ
Complete diversity of citizenship
Except in interpleader suits and class actions involving more
than $5 million
Amount in controversy
o Caterpillar, Inc. v. Lewis (US SC)
Claim wrongly removed to federal court because it did not have
complete diversity. Complete diversity established by the time of
judgment. Court held that the case judgment stands despite the defect
on pragmatic considerations (general efficiency will sometimes trump
fairness) of judicial economy and the fact this mistake of removal will
not happen to often (judges are smart and honest).
federal jurisdiction predicated on diversity of citizenship can be
sustained even if there does not exist complete diversity at the time of
removal to federal court, so long as complete diversity exists at the
time the district court enters judgment

Removal not allowed by P

1441(a)
o only D(s) can remove
Special allowances for removal
1442
o Federal officers or agencies sued or prosecuted
1442
o Class Action Fairness Act
1453
o Securities Litigation Uniform Standards Act of 1998
77p(b)
Certain kinds of cases not removable
o Limitation reflects Congress desire to give certain kinds of Ps an absolute
choice of forum, which cannot be frustrated by Ds removal
i.e. Federal Employers Liability Act and suits under state workers
compensation laws
1445
all other claims listed in
1445
A foreign state can remove to federal court
1441(d)
The fact that the state court did not have jurisdiction does not prevent D from
removing to federal court
1441(e)
Pleadings not pierced
o The right of removal is generally decided from the face of the pleadings.
The jurisdictional allegations of plaintiffs complaint control.
Jurisdictional allegations are viewed as of the time the notice of
removal is filed
Change in status
o If P amends complaint later and creates the opportunity
for removal, it can be removed

27

o However, P cannot take later action in order to defeat

removal
o Exception for diversity cases
Diversity cases present an exception to the rule
that removability is determined as of the time
when the notice of removal is filed. In
diversity cases, diversity must exist at the
time of filing the original action AND at the
time of notice removal (unless P has dropped
a party who had destroyed diversity)
Rationale: prevent D from acquiring a
new domicile after commencement of
the suit and then removing on the basis
of diversity. But as noted above, if P
drops a non-diverse party. And diversity
exists with respect to the remaining
parties, the action may be removed.
P is the master of his claim, if he chooses not to assert a
federal claim, even though one is available to him, D may not
remove
Removal of multiple claims
o 1441(c)parallels 1367(c) somewhat (not same on relatedness)
whenever a separate and independent claim or cause of action
within the [federal question] jurisdictionis joined with one or
more otherwise non-removable claims or causes of action, the
entire case may be removed and the district court may determine
all issues therein, or, in its discretion, may remanded all matters in
which State law predominates.
NOT available in diversity cases
o Tactic for P
P who wants to defeat diversity has a potential
weapon: as long as some additional claim can be
found that will bring in a non-diverse party, and
the joinder rules of the state are liberal enough
to allow that claim to be joined. P can defeat
diversity.
Federal question cases
o Removal does apply where one of the separate and
independent claims is based on federal question
jurisdiction
Probably unnecessary
However, 1441(c) is probably
unnecessary in most of the very FQ
situations where it is usable. It will
almost always be the case that the
28

courts 1367 SJ will apply; if so 1441(c)

does not need to be used at all.
Completely unrelated claims
Of course, if the state-law claim was
completely unrelated to the FQ claim,
then there would not be SJ, and 1441(c)
might seem to be both applicable and
useful. But in this situation, it is not
clear that as a constitutional matter, the
court could hear the state-law case
anyway (since the constitutional basis
for supplemental jurisdiction is that the
two claims arise from a common
nucleus of operative fact).

Remand
o In the relatively rare instance where D actually relies on
1441(c), P may score a partial victory by getting the
state claim sent back to state court
OR he may notdepending on ones reading
all matters
o District court may determine all issues therein, or in
its discretion, may remand all matters in which State
law predominates
o Some courts even hold that judges can remand
federal claim if state law dominates the matter

Remand
o If federal judge concludes that the removal did not satisfy the statutory
requirements, he must remand the case (all claims) to the state court from
which it came.
1447(c)
o Case may be remanded at any time during the trial for a lack of SMJ
1447(c)
o Cases can be remanded for defects in removal procedure within 30 days of
receipt in district court
1447(c)
Discretion to remand
o Federal court also has discretion to remand to the state courts if a
federal trial case would be jurisdictionally proper but unwise.
o This is most likely to happen if a FQ claim and a supplemental state
claim are both removed, and the federal claim is dismissed before trial
Carnegie-Mellon Univ. v. Cohill
o Codified under 1367(c)(3)
o Decision to remand is not appealable
1447(d)
Rationale: prevent frivolous removal. Prevent delay.
There are some extreme circumstances where the district
court may review it on writ of mandamus
Waiver
29

o D may be held to have waived his right of removal if he takes extensive

action on the merits in state court. But federal judges have usually been
reluctant to find such a waiver, even in cases where D did such things as
taking depositions in the state suit.
Mechanics of removal
USC 1446-1450
o Filing

D must usually filed for removal within 30 days of the time he

receives service of the summons and complaint

1446(b)
Amended complaints
1446(b)
D must usually filed for removal within 30 days of the time he
receives of receipt of an amended complaint that first
reveals the possibility of federal jurisdiction
Diversity-only cases
1446(b)
Must take place within one year from filing of lawsuit
(commencement)
o So D does not get a new residence
o Where filed

D files by submitting to the district court a notice of removal

setting out the facts that entitle him to remove

1446(a)

o Stay
Once the notice has been filed, the state court may take no further
proceedings until and unless the district court finds that no removal
jurisdiction exists, and remands to the state court.
o All Ds, except purely nominal ones, must normally join in the notice of
removal
Exceptions
E.g. Ds in cases invoking 1441(c) who are not involved in the
separate and independent claim, and Ds in certain class
actions
o Motion to remand
1447(c)

you have 30 days after the filing of the notice of removal

in order to contest that the D is a citizen of the state where the

action was brought in state court, and is thus not eligible for
removal
defect in SJM can be brought at any time
Capron
COUNTERCLAIMS
Rule 13

30

 Permissive counterclaim

13(b)
o Allows assertion as a counterclaim at Ds discretion of any claim that is not
compulsory
o No claim is far too removed from the subject of Ps claim to be allowed as a
counterclaim
There are exceptionslisted below
Compulsory counterclaim
13(a)
o Two requirements
1. It arises out of the transaction or occurrence that is the subject
matter of the opposing partys claim AND
2. It does not require adding another party over whom the court
cannot acquire jurisdiction
o Failure to state a compulsory counterclaim
Loss of the claim in future litigation
o Exceptions
Not compulsory even though they are within the same transaction
or occurrence as Ps claim. These include:
A claim which was the subject of another pending action at
the time the present action was commenced Rule 13(a)(2)(A);
AND
A claim in which the suit against D is in rem or quasi in rem
(assuming that D is not making any other counterclaim in the
action)
Rule 13(a)(2)(B)
o Rational for 13(a)(2)(B):
QIR and IR suits do not subject D to personal
liability; he can defend such a suit without
risking anything more than the property which
is under attachment. If a counterclaim by him
against P were compulsory, D would be put to
the harsh choice between: (1) losing his claim
forever through the failure to assert it, or (2)
making his claim and thereby subjecting himself
to unlimited personal liability (According to
most courts, personal liability results if D makes
a claim of his own). Therefore, 13(a)(2)(B)
gives D a chance to avoid unlimited liability and
at the same time preserve his claim for a
separate suit.
o Must be asserted in Ds pleading
Rule 13(a)
If an action is dismissed before it reaches the point where D must file
an answer, then no compulsory counterclaim ever comes into
existence
o Default by P

31

If D has asserted a counterclaim (whether compulsory or

permissive), and P neglects either to serve a reply or to move against
the counterclaim, a default judgment may be entered against P on
the counterclaim
Rule 55(d)

o Policy
Avoid multiple litigations
Allow for consolidation
Transaction or occurrence
o no defined meaning in the courts
o if claim is logically related
same aggregate of operative facts
o rule of thumb
many courts are especially interested in whether there is a substantial
amount of evidence that bears upon both the claim and the
counterclaim, and which would therefore have to be considered
twice if the counterclaim were not allowed
o Policy: judicial economy
Counterclaims by third parties
o Any party may make a claim against an opposing party
Rule 13(a),
13(b)
Third-party D
Third-party D may counterclaim against either the original D,
or against the original P. (In the latter case, a claim by P
against the third-party D must first have been made)
Ps counterclaim
P could have a compulsory counter-counterclaim
o Regardless of whether Ds claim was compulsory or
permissive
New parties
New parties to a counterclaim can be brought into a suit, as
long as the joinder test of either Rule 19 or Rule 20 is satisfied
Rule 13(h)
Cross-claims

Are not counterclaimscross-claims are never compulsory

Failure to raise a compulsory counterclaim
o Generally forever barred from suing on that claim in another federal
action
Basis for rule unclear
Leniency
In cases of hardship, where party was not at the time of the
first suit aware that he had a compulsory counterclaim, the

32

federal courts have been lenient in waiving the bar against

subsequent assertion of the claim in a new action
o Need for leniency is less pressing because of
amendment
Amendment
Rule 13(f)
Court may grant leave to a party who has overlooked a
compulsory counterclaim, to assert that counterclaim by
amendment during the original action, after the trial has
begun
Jurisdictional requirements for counterclaims
o SJ
A compulsory counterclaim to a federal action is often times
within the federal courts SJ
1367(a)
If claim is in the same transaction or occurrence it is
in the same common nucleus of operative fact
Permissive counterclaims not supplemental
A PC will probably NOT be within a courts SJ, and
must therefore satisfy the requirements of federal SJM.
Thus a PC may not be used to join a third-party who is of
the same citizenship as the party asserting the counterclaim
against him. Similarly, it is generally held that a PC must
independently exceed the amount in controversy
requirement.
Pleading of counterclaims
o Party raising a counterclaim is a plaintiff and his opponent a defendant for
the purposes of that claim. Rule of pleading correspond to those for
ordinary Ps claim and an ordinary Ds claim.
Rule 8(a)
Statutes of limitations for counterclaims
o If Ps complaint is timely, but Ds counterclaim would be barred by the
statute of limitations, may D assert the counterclaim?
o State rule
Common law precedent: counterclaims arising from the same
transaction as Ps claim may be asserted as defenses against any
timely claim, but may not yield an affirmative recovery. A
counterclaim not arising from the transaction on which P sues
must generally be timely on its own.
o Federal diversity cases
Where the case is a federal one based on diversity, Ds right to
bring an arguably time-barred counterclaim will depend in part on
whether the statute of limitations ran before or after P brought the
case
Time barred when P sued
o D not allowed to assert counterclaim as a means of
affirmative recovery, but might be able to use it as a
defense
33

Limited use is far more likely if CC is

compulsory rather than permissive

o Federal question cases

State law become irrelevant
Same as diversity
Plant v. Blazer Financial Services (5th Cir.)
o P suing D on a truth-in-lending cause of action. Court held that an action
on the underlying debt in fault is a compulsory counterclaim that must be
asserted by D. Court concluded that the obvious interrelationship of claims
and rights of parties, coupled with the common factual basis of the claims,
demonstrates a logical relationship between the claim and counterclaim.
Strategies for D (in general)
Costjudicial economy
Higher costs for Pdrop case?
Lowered Ps judgment
jury may be more sympathetic
P is arguing that this is not and D is arguing that is a
compulsorybecause if it were compulsory there would be
within ancillary jurisdiction
Bad for Duse it or lose it
Good for DsSJ if compulsory
Transaction or occurrence
factors leading to broad definitionmake it compulsory
o judicial economyrelevant today
concerning all judges
o fairness
you should be able to sue back to reduce
factors leading to narrow definitionmake it permissive
o federal courts should not have role in state
claims/ federal workloadrelevant today
o private enforcement scheme
JOINDER
first, examine the parties being joined to the suit
then, examine the claims being added to the suit

Relationship between joinder and jurisdiction

o THEY ARE SEPARATE

JOINDER OF CLAIMS

Rule 18(a)
34

 a party asserting a claim, counter-claim, cross-claim, or third-party claim,

may join, as independent or alternative claims, as many claims as it has
against an opposing party
once a party has made a claim against some other party, he may then
make any other claim he wishes against that party
Never required
o Joinder of claims is never required by Rule 18(a), but is left at the claimants
option. However, the rules of res judicata, particularly the rule against
splitting a cause of action, will often as a practical matter induce the claimant
to join claims
Subject Matter jurisdiction is not affected
o Rule 18(a) does not affect the requirements of SMJ, which must be
independently satisfied by the joined claim. That is, SJ will generally not
have to be applied to a claim joined with another under Rule 18(a).
Not usually restrictive
o As a practical matter, the SJM requirements will not usually impede the use of
Rule 18(a)
Diversity
Diversity is not affected generally by Rule 18(a) joinder of
claims because no new parties are added when Rule is used
Amount in controversy
Aggregation of claims is possible to satisfy jurisdictional
amount; aggregation of all claims by a given plaintiff against a
given defendant is allowed
SJ
However, if the initial claim against a particular D is itself
possible only because of the courts SJ, there may be
jurisdictional problems with joinder of other claims.
o I.e: suppose Ds claim against X is worth less than
$75,000, and is allowed only because the counterclaim
was compulsory and therefore within the courts
jurisdiction. An additional claim against X, which
together with the counterclaim does not aggregate to
$75,000, is not joinable under Rule 18(a)
Federal question claim
If the original claim against a particular D was a FQ claim, a
non-federal claim could not be joined under 18(a), unless
either diversity exists, or the two claims are closely related
so that the doctrine of SJ (formerly called pendent
jurisdiction in this context) applies
JOINDER OF PARTIES

Rationale: judicial economy

35

o Promote trial convenience, prevent multiple trials

Permissive joinder
Rule 20
o Allows P in certain circumstances to
(a) join other Ps with himself, or
(b) to make several parties co-defendants to his claim
If the option exists, P may use it but does not have to
o Requirements
Rule 20(a)
1. The claims for relief must arise from a single, transaction,
occurrence, or series of transactions or occurrences; AND
2. There must be a question of law or fact common to all parties which
will arise in action
o Policy:
May have to anticipate meritswhat evidence will be brought
Individualized evaluation
o Test
Logical relation or common evidence
o Common question must be of substantial importance to all Ps
o Each P must be voluntary
o Joinder of Ds
Same two-prong test
At Ps option
o Judicial Discretion
Rule 20(b)
Court has considerable discretion in arranging proceedings so as not to
causes undue inconvenience or prejudice to any party (e.g. separate
trials)

Jurisdiction in permissive joinder cases

o All PJ requirements must be met for all Ds
o All SJM requirements must be met for all Ps and Ds
SJ generally does not apply to Rule 20 joinder of multiple Ds
SJ partially applies to Rule 20 joinder of multiple Ps
Often prove fatal to Rule 20 joinder
o Complete diversity must be met
o Multiple Ps are permitted to aggregate their claims to meet the jurisdictional
amount, if at least one name named P meets the amount
Exxon
Each D must have claims against him equal to the jurisdictional
amount
o Venue must be met
Easier way to do this is bring suit in a district where substantial part of
the events occurred

36

 Mosley v. General Motors Corp. (8th Cir.)

o Ps (females, men and women minorities) suing D (GM) on discrimination
claims. Claims for relief arise of out the same transaction/occurrence and
there is a common question of law/fact. Therefore, the court reversed
disallowance of joinder by lower court and remanded.
Strategy for P (in general)
Makes GM look bad
Broaden claim as employment discrimination rather than
race discrimination and sex discrimination
o Common law or fact
COMPULSORY JOINDER
Rule 19
o In certain cases must be joined if it would prevent uneconomical or unfair
litigation
Temple v. Synthes (US SC)
Court held that patient (P) did not have to join negligence
claim against doctor when suing manufacturer in negligence
case. Court reasoned that a tortfeasor with the usual joint-andseveral liability is merely a permissive party to an action
against another with like liability.
o Two categories
Necessary parties
parties whose joinder, if possible is required by Rule 19(a)
Indispensable parties
parties who are so vital that if their joinder is impossible, the
court will consider factors to determine if the whole action
must be dropped
Rule 19(b)
o Necessary parties
19(a)
Must be joined if feasible: (1) service can be validly made on them,
and (2) their joinder would not destroy diversity. To be a necessary
party, a person must meet ONE of the following two tests:
Incomplete relief
o in that persons absence, the court cannot accord
complete relief among existing parties
19(a)(1)(A)
Impaired interest
o A judgment in the persons absence will either
(1) as a practical matter impair an interest the
person has, or
Absent partys rights

37

(2) impose on some of the existing parties

double, multiple, or otherwise inconsistent
obligations 19(a)(1)(B)
Inconsistent obligation for defendant
partyinconsistent judgments
Generally comes up when there is 2
injunctions
o PD1 AND PD2
o Indispensible parties
o Assuming absentee meets the two tests above (incomplete relief,
absentee partys rights/inconsistent judgments), the court considers
additional factors to determine whether the claim should be
discontinued if joinder is not possible
19(b)
Prejudice
Extent of prejudice to the absentee, or to those already
parties
Framing of judgment
the possibility of framing the judgment so as to mitigate
such prejudice
adequacy of remedy
the adequacy of remedy that can be granted in his
absence
result of dismissal
whether P will have an adequate remedy if the action is
dismissed
alternative forums
o Helzberg v. Valley West (8th Cir.)
H (P) sued VW (D) for breach of contract in bringing in
another jewelry store to mall. Court held that cases could not
be dismissed on grounds that new store was indispensable and
not subject to PJ. Court reasoned that a person does not
become indispensible to an action to determine right under a
contract simply because that persons rights or obligations
under an entirely separate contract will be affected by the
result of the action. Essentially, it is VWs fault for entering
into two conflicting contracts.
Some may argue it is a wrong decision because:
o Inconsistent judgment
o Alternative forums
o Jurisdictional obstacles
o PJ, SMJ, and venue must all be examined
100 mile bulge
o variety of difficulties

38

his presence would destroy diversity, since he is a citizen of the

same state as one P and there is no federal question
the claim against him does not meet the amount in controversy
requirement
he is beyond the personal jurisdiction of the court, because the
local long-arm would not reach him (since the local long-arm is
what is relied on in diversity suits)

o SJ

If person who is sought to be joined as D under Rule 19(a) is

not diverse with all Ps, or if the claim against him does not
meet the amount in controversy requirement, the doctrine of SJ
does NOT apply to overcome these defects. Therefore, joinedr
will not be allowed in this situation.
1367(b)

THIRD-PARTY PRACTICE (IMPLEADER)

Rule 14(a)
D alleging that a third person is liable to him for all or part of Ps claim against D
may implead such a person as a third-party D
o Third-party P v. third-party D
o Rationale: you do not want inconsistent decisions for P
Claim must be derivative
o Third-party Ps own liability is a prerequisite for throwing liability on the
third-party Dthird-party P must have some liability in the lawsuit,
cannot shift the entire blame to the third-party D
Chief purpose of impleader is to assert claims for indemnity,
subrogation, contribution, and breach of warranty
Shared responsibility is required
You do not lose your defense if you implead someoneyou do
not admit guilt
Alternative pleading that neither third-party P nor third-party D is
liable is possible
Partial claim alleging only a portion of the recovery is due from thirdparty D is possible
o Watergate v. Wiss (US District Court)
P-residents sued D-real estate company for hired engineering company
to draw specification for fixing balconies. D then hired different
company to do repairs. D1 impleaded D2 for negligence and asserted
D2s sole liability. Court stated that Rule 14(a) only allows for
impleading when D1 maintains his own liability and the claim is
derivative, and held that D1 expressed no liability and the claim
was not derivative. Therefore, D1 could not implead D2.
Think about what is the Ps claimthere is no basis for
indemnification here
39

o Assuming that the state law claim provides for

indemnification, etc.
Leave of court not needed if original D serves third-party summons and complaint
upon the third-party D within 10 days of the time the original D served his answer to
Ps claim
o After 10 days, permission to implead it necessary
Factors considered in granting impleader
o Judicial economy
o Whether party seeking to implead deliberately delayed or was derelict in filing
the impleader motion
o Whether impleading would unduly delay or complicate the trial
o Whether impleading would prejudice the third-party D
Impleader by P
o P against whom a counterclaim is filed may implead a third person who is
liable to him for the counterclaim
Rule 14(b)
Jurisdictional requirements relaxed
o Both PJ and SJM
o PJ
100-mile bulge
Rule 4(k)(1)(B)
o SJ
A third-party claim falls within the courts SJ
As long as there is DJ or FQJ between the original parties
o Venue
As long as proper between original parties
UNLESS great inconvenience to third-party D, the court may refuse
impleader
Claims involving third-party D
o Rule 14(a)(2) allows third-party D to make certain claims:
Counterclaims against third-party P
Cross-claims against third-party P
Any claim against original P or third-party P arising out of the
transaction or occurrence that is the subject matter of Ps claim against
the third-party P
Any counterclaim against original P, if original P has made a claim
against third-party D
14(a)(5): Impleader claims against persons not previously part of the
suit, if these persons may be liable to the third-party D for all or part of
the third-party Ps claim against him
o All above claims fall within SJ
no fear of collusion
o Defenses
Defenses against both the original P
14(a)(2)(A)
and third-party P can be made
14(a)(2)(B)

40

Claims by original P
original P may assert against the third-party D any claim arising out
of the transaction or occurrence that is the subject matter of the Ps
claim against the third-part P
Rule 14(a)(3)
does NOT fall within SJ and thus must independently
satisfy jurisdictional requirements
o disallowing collusion
not required to meet venue as if it were a separate action
Joinder of claims
o Original D may join to his third-party claim any other claims he has against
the third-party D.
o Such joinder falls within Rule 18(a) which allows a party to join as many
claims as it has against an opposing party
Dismissal of main claim
o If main claim is dismissed before or during trial, the court still has the
authority to hear the third-party claims based on it, if these are applicable, and
are within SJ. Whether to exercise this authority is generally left to the trial
courts discretion.
1367(c)(3)
o

Price v. CTB, Inc. (8th Cir.)

P sued D for making faulty chicken coup. D1 impleaded D2 for producing faulty
screws. If the claim is derivative of the original claim and there is at least a
possibility for factual/legal theory for impleading, there exists grounds for impleader
under Rule 14. Here, D1 properly impleaded D2.
CROSSCLAIMS
Rule 13(g)
o allows a party to make, in certain situations, a claim against a co-party
Requirements
1. Must have risen out of the transaction or occurrence that is the subject
matter of the original action or of a counterclaim therein, or else relate to
property that is the subject matter of the original action
2. Must ask for actual relief from the co-party against whom it is directed.
Where one D claims he is blameless and other D is liable, no crossclaim can be made
Indemnity claims are okay
Cross claims are never compulsory
Cross claims are within SJ
o Transaction or occurrencecommon nucleus
Fairview Park Excavating Co. v. Al Monzo Construction Co. (3rd Cir.)

41

Crossclaim between D1 and D2. Court found that cross-claim can be dismissed if the
original Ps claim is dismissed for lack of SJM. However, as was the case here, a
cross-claim properly permitted under Rule 13(g) under ancillary jurisdiction should
not be defeated by a decision on the merits adverse to the P on the Ps primary claim.
o Crossclaim can be dismissed if the original Ps claim is dismissed for lack
of jurisdiction; however, crossclaim may continue otherwise if original
claim is dismissed on non-jurisdictional grounds (court has discretion to
dismiss the crossclaim).

INTERVENTION

Rule 24 allows certain persons who are not initially part of a lawsuit to enter the suit
on their own initiative as intevenors
o Is really about your interest in a case and how if the case was decided
without you in it stare decisis would impede your interest
o Intervention allows you full status as a party in the courtroom
Alternativeamicus brief (friend of the court brief)
Two forms
o Intervention of right
Rule 24(a)
o Permissive intervention
Rule 24(b)
o Where the intervenor is permitted to intervene of right, no leave of court is
required for his entry into the case. Where the facts are such that only
permissive intervention is possible, it is left to the courts discretion whether
to allow intervention
Intervention as of right
24(a)(2)similarity to 19(a)(2)(i)
o Anyone meeting following criteria:
Intervention must be timely;
Interest in the legal subject matter;
Related to property or transaction that is the subject of the
action
Impaired interest;
Disposing of action may as a practical matter impair or
impede the movants ability to protect its interest AND;
Inadequate representation
This interest is not adequately represented by all parties
OR Statute
If outside cannot meet above criteria, he may nonetheless
automatically intervene under Rule 24(a) if a federal statute
gives him such right
o Stare decisis effect
Rule 24 has occasionally even been stretched to the point of requiring
the intervention of right of a party who is interested in the litigation

42

only because it may set an adverse precedent whose stare decisis effect
may later hamper him
o Jurisdiction
Must meet SMJ
No SJ

Permissive intervention
o A person who has a claim or defense involving a common question of law or
fact with a pending action may be allowed to intervene at the discretion of the
court
Rule 24(b)
Rarely appeals due to discretionary nature
Must meet SMJ

Martin v. Wilkes (US SC)

Black firefighters recently won a consent decree against discrimination against the
city of Birmingham. White firefighters brought a cause of action based on their
discrimination due to the decree. Black firefighters petitioned that this is not allowed
because they had there chance to intervene/join and failed to do so. However, the
court held that the white firefighters case could proceed. They reasoned that it is
those in the suit that share with the court the responsibility for joining the absentees.
The penalty for failing to locate and join all absentee interests is that one must face
the prospect of subsequent litigation when the absentees do assert their interests.
o Parties do not forfeit their ability to partake in later litigation if they
failed to intervene in the prior suit.
o Individuals are not held to a judgment of which they were not a party.
However, they may be subject to precedent of the court.
o Public law litigation often ends in consent decrees
Consent decrees may affect other parties
Consent decrees create legislative effects without going through
legislation
Atlantis Development Corp. v. United States
P (US) and D (Acme) are litigating over coral reefs off the coast of FL. Atlantis (I)
had interest in reef that government (P) sought to claim as government property.
Court granted intervention under Rule 24 because Ps claim to and interest in the very
property and very transaction which is the subject of the main action. Also, Atlantis
did not have adequate representation because it had no friend in the litigation. And
lastly, P has a right to advance his interest where the judgment of proceedings may
impede his ability to later protect that interest.
o Should we allow intervention?...YES
Timely.yes
Adequate representationno; Atlantis has no friend in the litigation
Interestyes; Atlantis is trying to claim property
Impede Atlantiss interestyes; court will follow precedencestare
decisis
43

Unlikely SC or en banc decision would have to overturn it

INTERPLEADER

Technique whereby a party who owes something to one of two or more other persons,
but isnt sure which, may force them to argue out their claims among themselves
before coming to sue him. It is designed to prevent the party from being made to
pay the same claim twice.
Two kinds of interpleader
o Statutory interpleader.28 USC 1335
o Rule interpleaderRule 22
Need for jurisdiction over both (or all) claimants
o Solved by 1335 and 22
Federal statutory interpleader
1335
o Allows a person holding property which is claimed or may be claimed by two
or more adverse claimants to interplead those claimants
o Jurisdictional problems
PJ
Diversity
Amount in controversy
o Solutions
Nationwide service of process
2361
A court in which a stakeholder has filed a 1335 suit may serve
its process on ay claimant, no matter where in the US that
claimant resides or is found
Minimal diversity
1335(a)(1)
Diversity is satisfied as long as some two claimants are
citizens of different states
Amount in controversy
Property which is the subject of the suit must merely exceed
$500 in value as opposed to $75,000
Venue
1397
Suit allowed in jurisdiction in which any claimant reside
o Commencement of interpleader suit
Commenced by stakeholder (plaintiff)
Stakeholder must deposit into court the amount of the property in
question, or pose a bond for that amount
o Injunctions
2361
You must disclaim property
Typically used to freeze assets or require their delivery to a claimant
Stakeholder must deposit the property in question with the court and
has no right to deny the debt to the claimants
o All other suits restrained
44

The further the goal of protecting the stakeholder from double

liability, a court hearing a 1335 action to enjoin (prohibit) all
claimants from starting or continuing any other action, in any state or
federal court, which would affect the property
2361
Interpleader can not be used to bring together all potential
litigation arising from an occurrence
Federal Rule Interpleader
Rule 22
o Much like 1335
o Whenever a person may be exposed to double or multiple liability, he may
demand interpleader. A person may do this by coming into court on his own
initiative, as P, or by counterclaiming or cross-claiming as D in an action
already commenced against him
Distinguished from 1335
The chief difference between 1335 and Rule 22 is that Rule 22
interpleader has no effect on ordinary jurisdictional and
venue requirements
o Diversity must be complete unless FQJ
o Standard service of process
o Standard amount in controversy requirement
No requirement to disclaim property under Rule 22
o Do not have to disclaim property
Denial of liability exists here as well

StatuteRule (cost/benefits of choice)

o Nationwide servicestandard service
o Minimal diversity (determined between claimants)Complete diversity
(determined between stakeholder and claimants)
o More than $500more than $75,000
o Injunctions (typically to freeze assets or require delivery to claimants)
Must disclaim property.do not have to disclaim property
o Denial of liabilitydenial of liability
o Venue
Residence of one or more claimantsordinary venue rules apply

Cohen v. The Republic of the Philippines

P (art dealer) brought interpleader action against Bramer and Philippines to determine
who owned paintings he was consigned to sell. Marcos (wife of former dictator)
intervened. Her intervention was allowed pursuant to Rule 24(a)(2) because her
intervention was timely, she has an affirmed interest, she may be subject to possible
prejudice, and she suffered a lack of adequate representation (no friends).
o Why was Marcos not interpleaded?
Did not realize she was a possibility
Maybe PJ was a problem
Figured she had no interest, or she would interpleader if she did

45

o Interpleader may not solve all your problems (i.e. conflicting

interests/judgments) if you do not implead all the parties you need to
CLASS ACTIONS

Procedure whereby a single person or small group of co-parties may represent a larger
group, or class, of person sharing a common interest
Class actions may be used where joinder of all the potential co-parties is not feasible,
either because the class is simply too large or because of the insuperable difficulties
of personal jurisdiction, venue, or diversity
o Only representatives must satisfy the requirements of personal
jurisdiction, SMJ, and venue.
One concern is that of due process because the results of this kind of mass litigation
must be binding on the absent members
Class can be made up of either defendants or plaintiffs
Class actions overcome mootness (relevance of the judgment) because you can
replace the representative as the case proceeds over time

Rule 23
Certification
Four prerequisites:
Rule 23(a)
1. Numerosity/Impracticality of Joinder
23(a)(1)
Class must be so large that joinder of all of its members is not feasible
Substitute for forms of joinder
Rule of thumb is about 40, but no magic number here
No exact number
geographical dispersion also taken into account
2. Commonality
23(a)(2)
There must be questions of law or fact common to the class
class should be a class that is it should consist of persons who share
characteristics that matter in terms of the substantive law involved
3. Typicality
23(a)(3)
The claims of defense of the representatives must be typical of those
of the class
Looking for the potential for conflicts between the representative and
the class as a whole
class representatives must stand, in significant respects, in the same
shoes as the average class member
4. Adequacy of Representation
23(a)(4)
The representatives must fairly and adequately protect the interests of
the class
Representative himself must have some stake in the litigation
46

 Relationship between representative and lawyer should be

straightforward
representatives must furnish competent legal counsel to fight the suit
measured before and after the suit
focuses more on the lawyer than in considerations of typicality
Three maintainable categories of class actions
23(b)(1-3)
23(b)(1) actionsinconsistency (limited fund (B))
o applies to situations that are similar to the circumstances requiring the joinder
of necessary parties under Rule 19
o Test for 23(b)(1)
Inconsistent decisions that would establish incompatible standards
of conduct for the party opposing the class
Rule 23(b)(1)(A) OR
inconsistency
The impairment of the interests of member of the class who are not
actually a party to the individual actions
Rule 23(b)(1)(B)
Dispositive of interest as a practical matter
o Members of a 23(b)(1) class may not opt out of the class, and will
therefore necessarily be bound by the disposition
o 23(b)(1) device is often used in the litigation of mass tort claims
coming under 23(b)(1)(B) because individual Ps not part of the class
may have their interests impaired in that the Ds may be insolvent by
the time they are to be paid their damages
limited fund class action
23(b)(2) actionsinjunctive
o least controversial form of class action
o allows the use of a class action if the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting
the class as a whole.
Provides for consolidated, consistent injunctions
o Main use is in civil rights cases with the intention of providing injunctive
relief against discrimination
Does NOT apply where monetary damages are the sole or primary
relief sought. Injunctive or declaratory relief must be the chief goal.
o Like in 23(b)(1), members of a 23(b)(2) class may not opt out of the class
23 (b)(3) actionsdamagespredomination/superiority (most attractive/most
controversial)
o most controversial form of class action
o two requirements
predomination (of common questions)

47

that questions of law or fact common to class members

predominate over any questions affecting only individual
members; AND
superiority (in form of litigation)
that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy
factors determining if superior method
o interest in individual control
the class members interests in individually
controlling the prosecution or defense of
separate actions;
o existing litigation
the extent and nature of any litigation
concerning the controversy already begun by or
against class members
o concentration in one forum
the desirability or undesirability of
concentrating the litigation of the claims in the
particular forum
o difficulties of management
the likely difficulties in managing a class
action
o most popular form of class actions because its requirements are the least
restrictive
almost a catch-all for class actions
o 23(c)(3)notice with right to opt claim because you claims will be
adjudicated
if you think youll get a lousy deal, and want to pursue litigation on
your own
o the likelihood that the class will win on the merits may be considered as a
factor determining whether the court will hear the suit
o frequently used in securities and antitrust cases
o also, used for mass tort actions
Requirement of notice
o The member of a class, other than the representatives, do not necessarily know
that the suit has been commenced. Therefore, the court will normally require
that these class members be given notice of the fact that the suit is pending
o When required
The giving of notice of the suit is required only where it is a 23(b)(3)
class action. Rule 23(c)(2)(B) requires the giving of the best notice
that is practicable under the circumstances to all b(3) class members
Rule 23(c)(2)
Individual notice

48

o Individual notice, almost always by mail, must be given

to all those class members whose names and addresses
can be obtained through reasonable effort, even if
the class numbers in the millions. 23(c)(2)(B)
Cost borne by named plaintiffs
o Named Ps must pay the costs of mail notice to each
such member. If they dont do so, the class action must
be dismissed.
Plaintiff must also bear the costs of identifying
class members
Contents of notice
Notice provided for in Rule 23(c)(2) must advise the class
member of a number of facts, including that:
Right of exclusion
o The court will exclude from the class if he so requests,
so that the judgment will not affect him
Opt out requirement
Opt out requirement does not make
sense for the other two class actions
Binding effect
o The judgment will affect him, whether it is favorable or
not, unless he excludes himself; and
Right to lawyer
o If he does not exclude himself, he may appear, with a
lawyer, in the class suit
o b(1) and b(2) actions
court may (but is not required to) order that appropriate notice be
given to the class
Rule 23(c)(2)(A)
Appropriate notice will not necessarily be individual notice, such as
mail notice it may instead be mass notice such as by newspaper or
website publication
binding affect of class action decision
o judgment in a 23(b)(3) class action is binding, whether it is for or against the
class, on all those whom the court finds to be members of the class
Rule
23(c)(3)
o exclusion
any person may exclude himself from the class in a b(3) actions, if he
notifies the court to that effect prior to a date specified in the notice of
the action sent to him.
23(c)(2)(A)
One of the reasons for which notice to all known members of the class
must be sent is to give each member the chance to opt out and bring
his own suit
A person who excludes himself from the action will not be
bound by an adverse judgment. But conversely, he may not

49

assert collateral estoppel in his own action if the judgment

turns out to be favorable to the class
b(1) and b(2) actions
absent class members in b(1) and b(2) actions do not have the
right to opt out of the class and bring their own suits
o b(1): to allow exclusion in b(1) cases would give rise to
exactly he kind of inconsistent adjudication that the
Rule is designed to prevent
o b(2): similarly, opting out of a b(2) action would make
no sense, since the declaratory or injunctive relief to
which b(2) addresses itself generally applies to the
whole class
o an absent P who does not opt out will be bound by decision, even if he
lacked minimum contacts with the forum state (and thus could not have
been bound if he was a D)
possible due process issueno minimum contacts for an absent class
member who does not have the right to opt out because it is a b(1) or
b(2) class action
SMJ
o No problem with class actions based on FQJ
o Class actions based solely on diversity
Only class representatives must be diverse with opposing party
Easily solved because attorney picks class representatives
Amount in controversy
At least one member satisfies jurisdictional amount ($75,000)
o Exxon
Named members cannot aggregate claims
o At least one named class member must independently
meet the jurisdictional amount
Class action Fairness Act of 2005
28 USC 1332(d)(2)
o Congress said class action can go forward if:
(a) there is minimal diversity (at least one P is diverse
with at least one D)
(b) there is at least $5 million in controversy in the
aggregate, even if no class members claim is for more
than $75,000
1332(d)(2)
Determination that no valid class action exists
o Rule 23(c)(1) provides that at an early practicable time following the filing
of a class action, the court must determine by order whether to certify the
action as a class action.
o Certifying the class means to decide that the class action is appropriate.
The certification requirement applies to all categories of class actions.
Consequence of denial

50

If the court finds that no class action is possible, the suit may
be continued by representatives, but with no res judicata
effect for or against the absent would-be class members
Sub-class
Alternatively, the suit may be continued by a sub-class of the
original class. In that event, no RJ effect extends to those
original class members not included in the new sub-class.
No right to appeal
If the trial court finds that the action should not proceed as a
class action, this finding is not a final order, and consequently
an immediate appeal generally may not be taken. The named
Os have to try the case as a non-class action (or with a smaller
class), and only on appeal from the judgment on the merits can
the correctness of the trial courts refusal to certify the class be
reviewed
Relief from Rule 23(f)
A court of appeals has discretion to permit and interlocutory
appeal from a district courts decision either to grant or to deny
class certification. So if the district court says no the Ps
request for class status, they at least have a fighting chance of
getting their appeal heard right away
o Also, if the district court grants class status the defense
may be able to persuade the court of appeals to hear an
interlocutory appeal on this grant, and then have it
overturned before undergoing a class trial

Communities for Equity v. Michigan high School Athletic Assn.

Discrimination against womens sports contra to Title IX and Equal Protection
Clause. Court certified matter as a class action pursuant to 23(b)(2), and the class
action was certified as to the following class: all present and future female students
enrolled in MHSAA member schools who participate in interscholastic athletics or
who are deterred from participating in interscholastic athletics because of Ds
discriminatory conduct and who are adversely affected by that conduct.
o Numerousitythousands
o Commonalityokay
o Typicalityrepresentative has interests typical of the class
Court is further satisfied because there is an organization
representing the class
o Adequate representation
o 23(b)(2)injunctive relief
Heaven v. Trust Company Bank
P makes truth in lending claims and D makes debt counterclaims. On appeal, a
district courts refusal to certify a class may only be overturned by a higher court if it
constitutes and abuse of discretion. Here, the court affirmed the lower courts
51

refusal of class certification under 23(b)(3) because Ds compulsory

counterclaims would compel individual Ps to come forward with individual
defenses and would thus require a court to engage in multiple separate factual
determinations. Furthermore, the court also determined that the interests of
some individual class members in controlling their own case would be
compromised.
o Issues of commonality

Settlements
o Any settlement of a class action must be approved by the court 23(e)
Designed to ensure that the interests of the absent class members are
adequately protected
notice in a reasonable manner of a proposed settlement must also be
given to all class members who would be bound by the proposal 23(e)
(1)
only notice to the named class representatives, not to the
unnamed members, is required before settlement of a puntative
class action that will never be certified
settlement-only class actions
class if certified for for settlement purposes only
settlement-only classes must me the same basic requirements
as class actions that will be tried
o management of action under 23(b)(3)(D) will not be
considered because there will be not action to manage
if settlement involves a 23(b)(3) class, it must offer a second chance
for individual members to opt out of the class and the settlement
23(e)(4)
and to prevent objectors being bought off by the settling parties,
objections may not be withdrawn without court approval 23(e)(5)
CAFA requires that if D is subject to state or federal regulation, that
the regulatory authorities be notified of the suit and a pending
settlement
28 USC 1715
Attorneys fees
o If the class is victorious (or receives a settlement), courts often reward
reasonable attorneys fees to the class lawyers.
Court has supervision of fees paid
o In class actions that recover money damages, court apply the common fund
doctrine where a P whose efforts create a fund is entitled to have those who
benefit contribute to his lawyers fee
Courts regularly award the class lawyer a fee taken directly from the
fund created by the litigation
o Calculation of attorneys fees
Percentage of claim
Consideration of the attorneys appropriate hourly fee while taking
into special risks, novelty of the issues, etc.
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o Problem: lawyer is representing a diffuse group who cannot directly instruct

or monitor the lawyers actions
Solutions:
Rule 23(e) requires notice to the absent class members and a
hearing and judicial finding that the proposed settlement is
fair, reasonable, and adequate.
Rule 23(h) creates a process the court must use to approve any
fees including those embodied in a settlement: It requires
notice, hearing, findings, and an opportunity to object to fees
1712 (part of CAFA) provides that fee awards in coupon
settlements must be based on the value of the coupons actually
redeemed, not on the hypothetical value of the settlement if all
such coupons were redeemed.

Often its very hard to get federal class-action status for a mass-tort suit where the suit
relates to not a single accident but to many small claims of people who are exposed
to a faulty product at different times and different circumstances.
o Problems: differences in times/circumstances/damages
One rationale that has provided some possibility is the limited fund theory under
23(b)(1)(B)

In re Northern District of CA Dalkon Shield RID Products Liability Litigation

Ds brought actions for DES product liability.
First, court held that national class will not be certified because it fails to meet some
of the prerequisites and there was not enough evidence of a limited fund under 23(b)
(1)(B)
Secondly, court held that the CA liability class does not satisfy the typicality
requirement of Rule 23(a)(3) because no representative is typical of the numerous
claimants nor does the class satisfy Rule 23(b)(3) requirement that the class action be
superior to other means of available adjudication. The latter being due to interests in
individual control of cases, a large extent of pending legislation, a lack of
concentration in forum, and the inability for adequate management. Furthermore, the
court did not preclude further consideration by the district court of motions to certify
a more limited sub-class under Rule 23(b)(3).
o Two classes
National class
Dealing with punitive damages
o Pswant to get paid
o Dsdo not want to face continuous suit for punitive
damages
Prerequisites
o Numerosityyes
o CommonalityDs knowledge of the medical defect
Different rules across the different jurisdictions

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o Typicalityno
No plaintiff is willing to serve as a class
representative
o Adequacy of represenation...no
No attorney is willing to serve as a class
o Not enough evidence of a limited fundno 23(b)(1)(B)
California class (b)(3)
All actions
o Predominationcommon issues do not predominate
over the non-common issues
o Superiorityno
Individual litigation is the way to go because it
is more efficient
Random sampling of individual cases
help guides the litigation of future cases

Ortiz v. Fibreboard Corp.

Facts
o Settlement in Ortiz would have settled all not-yet-filed (as of the time of
settlement) asbestos claims against Fibreboard (D), in return for the setting up
of a $1.5 billion trust fund, mostly from Ds insurers. All claims that had
already been filed against D prior to the settlement, including about 45,000
that had already settled and 53,000 that were pending, were excluded from the
settlement. And D was permitted to keep nearly all of its own net worth rather
than contributing it to the fund. Each claim that was covered by the
settlement (i.e. each claims that had not yet been filed at the time of the
settlement) was to be limited to a total recovery of $500,000, and court
proceedings against the trust could only be brought after the claimant engaged
in mediation or arbitration. This treatment was, by and large, much less
favorable to the claimants than was the treatment of claims that had already
been filed against and/or settled by D (claims which were therefore not
covered by the settlement at issue). Proponents of the settlement argued that
they were ensuring that future claimants would get $1.5 billion, whereas
without the settlement all available funds might be used up (due to Ds
eventual bankruptcy and exhaustion of insurance limits) long before many of
these future claims had been heard.
Court rejects settlements on 3 conditions
Conditions
o SC indicated that for a mass tort case to be properly certified and settled under
a 23(b)(1) limited-fund theory, the settlement would probably have to satisfy
three requirements (presumptively necessary):
1. Limited fund must be insufficient
First, it would have to be apparent that the total of the
aggregate claims was clearly greater than the limited fund
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2. Whole fund must be used

Second, the whole of the fund would have to devoted to the
claims (not set aside for other purposes, such as preserving the
value of stockholder equity in the D-corporation); AND
3. Equitable treatment among claimants
Finally, the claimants would have to be treated equitably
amongst themselves, i.e., no sub-class could be unfairly
favored over another sub-class
Application to facts
1. Fund cant be fixed by agreement of parties
As to insufficiency of the fund, the Court held, the funds size, and its
inefficiency relative to the other claims, must be proved, and cannot
merely be stipulated to by agreement of the parties. The settlement in
Ortiz simply and arbitrarily fixed the fund at a specified size based on
an estimate of what insurance assets were available to claimants, and
somewhat arbitrarily estimated the size of the covered claims. But the
settlement could not be approved unless there were specific
evidentiary findings by the court (not just an agreement between the
parties) estimating both the size of the fund and the amount of the
claims.
2. Equitable treatment among claimants
As to equitable treatment among claimants, many of Ps lawyers
who wee advocating the settlement had previously represented other
claimants not involved in the settlement (e.g., the 53,000 claims that
had already been filed but had not yet been settled.) Those 53,000 had
been provisionally settled on a separate basis, but that settlement was
contingent on the master settlement of unfiled claims that was before
the Court. The Court believed that there were fatal conflicts of
interest on the part of counsel, since those who represented the 53,000
present claimants may have had an incentive to shortchange the future
(unidentified) claimants in favor of the present ones, in order to get a
settlement (and present fees) on the 53,000 claims.
o Possible use of sub-class, still may be a problem
3. Use of whole fund
As to the requirement that whole fund be used for claims, the court
was troubled by the fact that D itself was permitted to keep nearly all
of its stockholders equity, and was merely contributing its insurance
coverage. However, the Court did not decide that this was necessarily
fatal. The Court conceded that the costs of ongoing litigation of
individual future claims might, in the absence of the class settlement,
so deplete Ds resources that the future claimants might be better off
with the $1.5 billion funds from the proposed settlement now than with
access to that same amount of insurance, plus Ds own net worth, at a
distant future date. So perhaps it was reasonable to give D an
incentive to settle now an incentive in the form of allowing D to
keep its net worth rather than burning up its net worth in litigation
55

costs. But the Court decided to leave for another day this issue of
whether such an incentive could be proper.

Significance

Ortiz demonstrates that the settlement of a mandatory class action based on

limited-fund theory would probably be acceptable if certain conditions are
satisfied. However, Ortiz suggests that it will generally be difficult to get
judicial approval of (b)(1) limited-fund settlements.

JUDICIAL DISCRETION
Rule 42. Consolidation.
(a) Consolidation.
If actions before the court involve a common question of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
(b) Separate Trials.
For convenience, to avoid prejudice, or to expedite and economize, the court may order a
separate trial of one or more separate issues, claims, crossclaims, counterclaims, or
thirdparty claims. When ordering a separate trial, the court must preserve any federal
right to a jury trial.
PLEADING
Brief history of pleading
Local courts/kings courts (issued writs)
Common law
Can you fit one of your claims into one of the traditional causes of action
Procedure for each cause of action
You had to assent to the facts and fight the legal claims or assent to the law and fight
the factual claims
Narrowing it to one issue
Court of chancery
System of equity
US adopts British common law and equity principles into one system of courts
1848Field Code
eliminates causes of actions (writ system)
still need to present a complaint with a great amount of detail
1938Federal Rules of Civil Procedure
Rule 2...there is one form of action, the civil action
Notice pleading
Much more lenient
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 Notice given, but detail of evidence against D not needed in complaint

Pleadings allowed by Rule 7(a)

Complaint; an answer to a complaint; an answer to a counterclaim designated
as a counterclaim; and answer to a crossclaim; a third-party complaint; and if
the court orders one, a reply to the answer

THE COMPLAINT

Service must occur within 120 days of the filing of a complaint

4(m)
The complaint is the initial pleading in a lawsuit, and is filed by the plaintiff
The action is deemed to have been commenced by the filing of the
complaint with the court
Rule 3
o Effect on statute of limitations
In diversity cases, this filing, although commencing the
action, does not satisfy or toll a state statute of limitations
requiring actual service of process. Federal courts in diversity
cases are required to follow the statute of limitations in the
state where they sit.
Elements of a complaint
Rule 8
Complaintclaim, crossclaim, counterclaim
You must have a reasonable belief that the statement are trueyou sign
the document
1. Jurisdiction
a short and plain statement of the grounds for the courts jurisdiction
SJM, PJ
Diversitycitizenship, amount in controversy
FQJfederal statute
2. statement of claim
a short and plain statement of the claim showing that the pleader is
entitled to relief
a claim should not be dismissed unless no set of facts will
entitle P to relief
you also do not want to use too many facts thatplea yourself
out of court
each averment (assertion) must be simple, concise, and direct
the pleading is an important first impression on a judge
3. relief
a demand for the relief sought
jurisdictional allegation
diversity suit
listing of citizenships; amount in controversy
FQ
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Reference to the federal statute or constitutional provision relied upon

Degree of specificity required
Rule 8(a)s requirement of a short and plain statement of the claim
showing that the pleader is entitled to relief has generally been construed
so as to place the fewest possible technical requirements on the pleader. The
level of factual detail required has not been high; gaps in the facts are
usually remedied through discovery or other pre-trial procedures.
Notice pleading
Prima facie case need not be recited
P need not recite facts that are sufficient to demonstrate a prima facie
case. That is, as long as P gives enough facts to put D on reasonable
notice about what is being alleged, its irrelevant that P has failed to
allege some matters that he will ultimately have to prove in order to
recover.
Conclusory statement not enough
Pleader must, however, state at least the basic facts of his claim, and
may not simply recite his conclusion that he is entitled to relief
Must present some specific, detailed, plausible facts that
lead to alleged legal conclusion
Single or separate counts
Rule 10(b) provides that each individual claim should be set forth in a
separate count and that the counts should in turn be broken into numbered
paragraphs, each of which is limited to the statement of a single set of
circumstances.
Demand for judgment
Under Rule 8(a), each complaint (as well as each counterclaim and crossclaim) must contain a demand for the relief sought
Contents: generally this demand for relief (sometimes called the prayer)
will be for one or more of the following three things
Money damages
Injunctive or equitable relief
A declaratory judgment as to the parties rights and liabilities
Wrong relief requested
If the trial makes its clear that the demand for relief was inappropriate,
the court must nonetheless grant the relief to which each party is
entitled, even if the party has not demanded that relief in its
pleadings. Rule 54(c)
Default judgment
Rule 54(c) states that a judgment by default shall not be
different in kind from or exceed in amount that prayed for in
the demand for judgment
Special matters

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In addition to the general requirements of a short and plain statement of the

claim imposed by Rule 8(a), certain special matters must be pleaded with
particularity if they are to be raised at trial. These special matters are ones
notice of which is thought to be necessary in order for the opponent to be able
to prepare for trial. They are typically claims which the adversary will not be
expecting unless his attention is specifically called to the,
Catalogue of matters: these special matters listed in Rule 9, include
the following
any denial of any partys legal capacity to sue or be sued 9(a)

the circumstances giving rise to any allegation of fraud or

mistake 9(b)
any denial of the performance or occurrence of condition
precedent 9(c)
the existence of official documents and acts or judgments, on
which the pleader plans to rely
9(d); 9(e)
material facts of time and place
9(f)

special damages 9(g)

certain aspects of admiralty and maritime jurisdiction

9(h)
Ps failure to specially plead one of the items listed in Rule 9 may
prevent him from recovering at all, or from recovering particular
items of damage
if item not listed in Rule 9, no heightened pleading required
courts may not require P to plead all the facts needed for a
prima facie case, if the matter does not fall within Rule 9
Twombly (US SC)
prevents fishing expeditions in which people make general claims in hopes of
obtaining discovery that will help them sharpen their far-reaching argument.
Iqbal (US SC, 2009)
P alleges a Bivens claim, a claim against a federal officer for violating a constitutional
right, on grounds that he was subject to harsh treatment because of his religion.
There is no respondeat superior against government officials for complaints against
the individuals under them.
In determining whether to dismiss a complaint, the court considered Twombly
2 part test presented by Iqbal
1. Filter legal conclusions
A certain degree of specific, detailed, factual statements that lead
to legal relief are required
o So, what do Ps attorneys do?
Allege more specific facts or leave some out?
2. Plausibility

59

Majority
o Its a low threshold, but its stricter than mere fanciful things
use common sense here (based on prior beliefs,
general knowledge, etc.)
US AG is a bigotnot plausible
Questionable assertion
Some people get a benefit of the doubt
who are those people, we dont
necessarily know
Dissent
o Totally fanciful things
little green men, etc.
o test is a little bit unclear
does it blur the line between notice pleading and heightened
pleading?
We need to limit access to our legal system to people who can present some sort of
plausible string of factual statements that lead to a certain legal conclusion

Clinton v. Jones
Superficially simple
Quality of litigation is very high
Familiar

Critiquing the complaint

o Introductory paragraph
Not needed
Provide a sort of roadmap
Appeal to non-legal reader
First impression of the first impression (complaint)
They should have used more facts
o Paragraph 1
Jurisdictional grounds
o Paragraph 2
Venue
Heading: venue is not jurisdiction
o Paragraph 3 and 4
Citizenship is important for venue
o Paragraph 39
Not simple, concise and direct
o Constitutional violation of use of government power (P went after this as
back-up because the statute of limitations ran for sexual harassment)
Due process
Equal protection

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Heightened requirements of specificity for pleading

o Bell Atlantic Corp. v. Twombly (US SC)
P suing D on anti-trust matters. Court held that Ps failed to state a
valid claim because their factual allegations were not enough to raise a
right to relief above a speculative level. Furthermore, the court noted
that we do not require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face.
Because Ps here have not nudged their claims across the line from
conceivable to plausible , their complaint must be dismissed.
o Stradford v. Zurich Insurance Corp. (SDNY)
P-dentist suing D-insurance company. Ds made a counterclaim
asserted fraud that the court dismissed because they failed to identify
the statement made by P that they claim to be false. Rule 9(b) states:
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. The rationale behind 9(b) is to afford a litigant fair
notice of what the alleged fraud claim is based on. Ps were given the
opportunity to amend their complaints.
P suing for increased insurance claim
D counterclaims for fraud
Rule 9(b) call for specificity
Time, place, and nature of alleged misrepresentations
Rationales for Rule 9(b)
fishing expeditions
punitive damages
police boundaries of contract and tort law
o Leatherman (US SC)
P suing D-municipality. The Court held that a federal court may not
apply a heightened pleading standard more stringent than the usual
pleading requirements of Rule 8(a) of the FRCP in civil cases
alleging municipal liability under 42 USC 1983 (if a state official
violates your constitutional rights).
P accused municipality of improper training
Lower court is essentially reasoning that there is a need for
heightened pleading because of the possibility of municipal
immunity
Notice pleading in 1983 cases is not heightened
The burden of pleading
o Gomez v. Toledo (US SC)
P sued D, a public official, for damages under 1983 of the Civil
Rights Act. A public officials qualified immunity from damages
liability was held to be an affirmative defense, and therefore up to D to
plead, because it depends on facts peculiarly within the knowledge
and control of D. His good faith belief that his conduct was lawful,
61

based upon state or local law, advice of counsel, administrative

practice, or some other factor of which the official alone is aware.
Does P have to plead bad faith or does D have to plead good
faith?
Three separate burdensusually courts group these three
together for one party
Pleading
Production
Proof
Why does D have to plead good faith?
Knowledge and control
State identifies elementsoffense
Anything outside of these elements is
considered a defense
Court has described it as a defense in prior questions
Common law basis, but is statutory
There is some subjectivity involved in determining whether
something is a defense
The individual (D in this case) has knowledge/control of
informationso he has the burdens of pleading,
production, and possession
Rule 11(b) bases for motion to sanction
o Improper purpose or harassment
o An inadequate basis in law
o An absence of present or likely evidentiary support for allegations of fact
It is the lawyers obligation (he signs off on the papers, not P) to certify that the
inquiry is reasonable under the circumstances
11
Rule 10form of pleading
o Look to Clinton for format though

THE ANSWER

In response to Ps complaint, Ds answer must state in short and plain terms his
defenses to each claim asserted against him and admit or deny the allegations asserted
against him. 8(b)
o This also applies to Ps answer to Ds counterclaim, to the answer of a thirdparty D to a third-party claim, and other such pleadings
o Defenses, like claims, may be pleaded in the alternative. D may even
make defenses which are incompatible with each other.
Denials
o Averments in a complaint, other than those concerning the amount of damage,
are deemed admitted if not denied in the answer 8(b)(6)
o Kinds of denials
General denial
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8(b)(3) permits D to say that he denies all of the allegations in

Ps complaint. 8(b)(3) restricts the general denial to situations
where D intends in good faith to contest all of the Ps
allegations including the complaints jurisdictional grounds.
The rule goes on the say that A party that does not intend to
deny all the allegations must either specifically deny
designated allegations or generally deny all expect those
specifically admitted.
So unless D is prepared to contest every single allegation in
the complaint, one of the types of denials listed below (e.g.
specific denial or qualified denial) must be used rather than
general denial.
Specific denial
A denial may be made of all the allegations of a specific
paragraph or averment in the complaint
Qualified denial
a denial may be made of a particular portion of a particular
allegation
denial of knowledge or information (DKI)
D may deny knowledge or information if he does not have
knowledge or information sufficient to form a belief as to the
truth of Ps complaint. This has the effect of a full denial, and
is subject to the requirement of good full.
Denial based on information and belief
The denial based on information and belief is not specifically
set forth in 8(b). The courts have allowed D without first-hand
knowledge, but with enough information to believe in good
faith that the complaint is false, to deny it on that ground. This
kind of denial is usually used by large corporate Ds, on whom
the burden of obtaining information may be great.
Signed by Ds attorney
o The answer must be signed by Ds lawyer
o Rule 11 requires every pleading be signed by an attorney representing the
pleader ,and provides that by presenting the pleading to the court, the attorney
certifies that to the best of the attorneys knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances, the pleading is,
among other things, warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or for
establishing new law, and that any denials are warranted on the evidence, or
if specifically so identified, are reasonably based on belief or a lack of
information.
Theoretical good faith requirement
Affirmative defenses
o Rule 8(c) lists 19 specific defenses which must be explicitly pleaded in the
answer, if D is to raise them at trial. Among the more important of these

63

affirmative defenses are contributory negligence, fraud, res judicata, statute

of limitations, and illegality
accord and satisfaction; arbitration and award; assumption of risk;
contributory negligence; discharge in bankruptcy; duress; estoppel;
failure of consideration; fraud; illegality; injury by fellow servant;
laches; license; payment; release; res judicata; statute of frauds; statute
of limitations; and waiver.
o in addition to the 19 items specifically listed in 8(c), that Rule requires D to
plead affirmatively any avoidance or affirmative defense. The essential
criterion for deciding whether a defense is an affirmative one is roughly as
follows: any new matter or issue not embraced by the complaint should
be pleaded as an affirmative defense
Rationale
the justification for requiring the pleading of affirmative
defenses derives from the notice-giving function of pleadings
in federal practice. Affirmative defenses are those which P
may not be anticipating. This is so because they involve new
issues not contained in the complaint. Therefore, D must
plead these new matters in order to put P on his guard.
Furthermore, affirmative defenses often involve facts that are
peculiarly within the defendants knowledge. For this reason
as well, it seems fair to put the burden upon D, rather than the
P, to allege these factual matters.
o Gomez v. Toledo
P sued D, a public official, for damages under
1983 of the Civil Rights Act. A public officials
qualified immunity from damages liability was
held to be an affirmative defense, and therefore
up to D to plead, because it depends on facts
peculiarly within the knowledge and control of
D. His good faith belief that his conduct was
lawful, based upon state or local law, advice of
counsel, administrative practice, or some other
factor of which the official alone is aware.
Amendment
D who has neglected to plead an affirmative defense may use
Rule 15(a)s liberal amendment mechanism. In most
instances, 15(a) gives D 20 days from the service of the
original answer in which to amend. After that, leave of court is
necessary, but the court should freely leave when justice so
requires. Even in the early stages of trial, when pleading may
be presumed to be completed leave to plead an affirmative
defense will almost invariably be granted.
RULE 12

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Time to serve a responsive pleading

12(a)
o Within 20 days after being served OR
o Within 60 days (US D) or 90 days (foreign D) from sending date for a
request for waiver if D does in fact waiver service
Defenses which may be raised in motion
12(b)
1. Lack of jurisdiction over the subject matter
2. Lack of jurisdiction over the person
3. Improper venue
4. Insufficiency of process
Concerns issues of filtering and plausibility more so than 12(b)(6)
Deals more with facts
12(b)(6) deals more with causes of action
5. Insufficiency of service of process
6. Failure to state a claim upon which relief may be granted
Facts considered in a light most favorable to P
7. Failure to join party under Rule 19
12(b)(6)
o motion to dismiss for failure to state a claim
Molasky v. Garfinkle (SDNY)
Ps are stockholders complaining that an accounting firm
prepared false financial reports and other statement to prevent
P from selling when he declared his attention to do so. 12(b)
(6) motion.

o Facts

o Securities fraud
o Transactional nexus
Buyer/seller of securities
o Application of 1367

Undisputed facts
Takes the facts in the light most favorable to non-moving
party (plaintiff)
Often casted in a way that marks the relevant factual and legal
issues
o Provides opportunity for legal analysis
Consideration law applicable to the facts
12(b)(6) asserts that on the facts indicated in Ps complaint, recovery is
not possible under any legal theory
o precedent
court follows applicable precedent
o relationship to 1367(c)
claim may be discretionally dismissed here, especially because it is
early on in the case

65

o generally filed before D files his answer

o if complaint is dismissed under 12(b)(6), P will almost always have the
opportunity to amend it The dismissal is said to be without prejudice to
Ps right to replead

12(c)

o motion for judgment on the pleadings

o after D files his answer, and the pleadings are complete, D can challenge the
sufficiency of the complaint by a Rule 12(c) motion for judgment on
pleadings
The substance of a 12(c) motions is exactly the same as that of a 12(b)
(6) motion, except that the former is made only after the pleadings are
complete, while the later can be made as soon as the complaint is
served
Arguments considered in 12(b)(6) or 12(c) motions
o That the complaint contains no allegations as to a particular element
o That the allegations are insufficiently precise
o That a claim is time-barred
o That there is no substantive law that can serve as the basis for the claim
o That the acts alleged could be the basis for a claim in other contexts, but not
here
Remember: motions to dismiss are directed at claims, not cases
12(e)
o motion for a more definite statement
o if complaint is so vague or ambiguous that D cannot reasonably prepare a
response
o If motion is granted, P will be required to replead his complaint in a more
detailed or clearer manner. If the motion is not granted, the denial is not
appealable and D must file his responsive pleading.
o P can file a12(e) motion with respect to Ds counterclaim
o Courts are reluctant to grant 12(e) motions
Courts consider whether complaint gives D enough information from
which to draft his answer and commence discovery
12(f)
o motion to strike
o allows matter which is redundant, immaterial, impertinent, or scandalous to be
stricken from a pleading
o courts reluctant to grant 12(f) motions
12(g-h)
o if you file any motion in between 12(b)(2-5) it must be done in:
a pre-answer motion OR
an attachment to your answer
if you fail to include any 12(b)(2-5) objection in one of these motions,
then you waive it
66

o if you fail to raise a 12(b)(1) motion in you in your pre-answer motion or by

an attachment your answer, you do not waiver thema 12(b)(1) motions can
be filed at any time during the proceedings
o if you fail to raise either a 12(b)(6) or (7) motion in your pre-answer motion or
by an attachment your answer, then you waive themBUT the same
underlying point can be achieved by filing a 12(c) motion at a later time
o 12(c)
done after the pleadings are closed OR
done at trial

Jones v. Clinton
o D wants to file a 12(b)(6) on immunity grounds
After filing a 12(b)(6) motion, you cannot file another 12(b)(6) and
continue to do so successively
Judge may have been ambiguous on this
You do not waive the underlying issue because you can bring it
up through 12(c)therefore your motion is granted
o D is simply trying to delay as much as possible
Successive 12(b)(6) motions would eat up a lot of time
o Ds allegations in the 12(c) motion
D was not acting under the color of law
D was not discriminating against her on the basis of sex, but on
personal characteristics

AMENDMENT
Rule 15
Liberal policy
Amendment as a matter of course
15(a)(1)
o A pleading may be amended without leave of the court in the following
circumstances:
Before being served with a responsive pleading OR
15(a)(1)
(A)
21 days after serving the pleading if a responsive pleading is not
allowed and the action is not yet on the trial calendar 15(a)(1)
(B)
non-responsive pleading (response not required): i.e. answer
Amendment by leave of court
15(a)(2)
o if the requirements for amendment as of course are not met, pleading may be
amended only be leave of court or by written consent of the other side
the court should freely give leave to amend when justice so requires
15(a)(2)

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actual prejudice to the other party usually required to deny leave to

amend
Bleek v. Aquaslide
o P sued D for injuries suffered from his water slide. D
first admitted that he manufactured the water slide then
later amended his answer to deny he manufactured the
water slide. Court held that leave to amend was okay
because leave will not be granted only when the
other partys shows it will suffer actual prejudice
from doing so. P did not show such prejudice since he
did not establish that he could not prevail on the factual
issue of the manufacture of the slide nor did he
demonstrate that he would not be able to sue other
parties due to a statute of limitations. Since disallowing
the amendment would have been clearly prejudicial to
D, and because D did not move to amend in bad faith
the leave to amend authorized by the trial court was not
an abuse of discretion.
Filestatute of limitations has run
amendment
The later a party moves to amend, the higher the chance it may be
denied in doing so

Relation back
o Where a pleading has been amended, if the claim or defenses asserted in the
amended pleading arose out of the conduct, transaction, or occurrence set
out or attempted to be set out in the original pleading, the amendment
relates back to the date of the original pleading.
15(c)(1)(B)
o The utility of this provision is in meeting the statute of limitations that have
run between the filing of the original complaint and the amendment. Without
such provision, P whose original complaint met the statute of limitations
might find himself barred by the statute, even though his amended pleading
was only slightly different from the original one, and even though D had
received fair notice of the general nature of Ps claim before the statute of
limitations had run.
An action is deemed commenced as of the date on which the
complaint is filed
o A single conduct, transaction, or occurrence
Relation back doctrine only applies where pleading as amended arose
out of the same conduct, transaction, or occurrence
When whats amended is simply the claim or theory, not the
underlying facts that are asserted in support of the claim, the
court will typically find that the same conduct, transaction, or
occurrence requirement is satisfied.
But where the underlying facts needed to sustain the new
pleading are materially different from those needed to sustain

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the original complaint, the court is likely to find that the same
conduct, transaction, or occurrence standard is not met.
Whether D is placed on notice: courts often phrase the issue
in terms of notice: if D reading the original complaint would
not be placed on notice of the essence of what will later be
claimed in the amended complaint, then the two complaints
dont involve the same conduct, transaction, or occurrence,
and relation back wont apply.
o Moore v. Baker
P claims D was violated informed-consent
protocol, but later amended to assert that D was
negligent in that way he performed the surgery
and post-operative case. Court held that Ps
amended complaint did not related back and
was time barred because the allegations in
Ps original complaint contained nothing that
would have put D on notice that the new
claims of negligence might be asserted. The
original complaint focused on Ds negligence
before P decided to have surgery, whereas the
amended complaint focused on Ds actions
during and after the surgery.
Informed consentmedical malpractice
Little dealbig deal
o Very surprisinglack of notice
Clear predjudice
o Bonerb v. Caron Foundation
P was injured while playing mandatory
basketball at rehabilitation center. P originally
filed a complaint based on Ds negligence
maintenance of the facility then left to amend
his complaint to add a new cause of action for
counseling malpractice. Court held that an
amendment which changes the legal theory of
a case is appropriate if the factual situations
which the action depends remains the same
and has been brought to Ds attention.
Allegations in the original and amended
complaints derived from the same nucleus of
operative facts involving injury suffered by P
on November 29, 1991. Thus notice was given
to D of the possibility of such a claim; therefore,
the amended complaint relates back.
Change of party

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Amendment only relates back when P changes the party

against whom the claim is asserted if in addition to the same
transaction or occurrence, it is the case that within the
period provided by Rule 4(m) for serving the summons and
complaint (120 days after filing) the party be brought in by
amendment (i) received such notice of the action that will
not be prejudiced in defending on the merits; and (ii) knew
or should have know that the action would have been
brought against iit, but for a mistake concerning the proper
partys identity. 15(c)(1)(C)

Jones v. Clinton
o D attempts to go with a 12(c) motion attached to his answer in hopes to
revoke Ps ability to amend without having to gain leave of the court

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