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Joseph Roseme Civ. Pro.


DF- Scott Byers-

20 QUESTIONS!: 1. Lawyer Role? (personal/professionalism) 2. What are you asked to do? (how did you get retained) 3. Interview? (how do you counsel a client) 4. Fact investigation? (how do you go about it) 5. Litigation Strategy? (theory of plan & proof) 6. Remedies & Fees? (how do you get paid-5 ways) 7. Affirmative Pleadings & Defense? (who do we name as parties) 8. Forum Selection & Judge Shopping? (venue & judge choice) 9. Subject Matter Jurisdiction? (SMJ) 10. Personal Jurisdiction? (PJ) 11. Choice of Law? (Fed or State Law) 12. Negotiation Alternative Dispute? (settle or no settle) 13. Pre-Trial Conference? 14. Discovery? (ask for Doc., questions, investigate) 15. Pretrial Motions? (motion to dismiss-Rule 12, summary judgment-Rule 16. Trials? (how to run trial) 17. Trial Motions? (motions during the trial) 18. Post Trial Motions? (Motions after the trial) 19. Appeals? (how, when, & what you can appeal) 1291- Can appeal after final decision 1292- Interlockery appeal, you can appeal while case is still going on. 20. Judgment? (what is the binding order) y y To begin an action you must file a formal complaint through Rule 3- Commencing an Action The difference between filing & submitting is that filing is presented to the court clerk, submitting is when you present it to the court. A pleading is a complaint, answer, & reply A motion is an application for an order

y y y ***Federal Courts have 3 kinds of power: 1. Inherent Power 2. Statutory Power 3. Power that derives from Rule 16- which deals with Pretrial Conferences; Scheduling, & Mgt. Section (F) also give the court the power to sanction. Rule 16 cross references Rule 37; which deals with sanctions in the failure to make disclosures or to cooperate in discovery. y

Subjective reasonable is what you think is reasonable. Objective reasonable is what the court thinks is reasonable. As a defendant you want to drive up the cost of litigation to encourage settlement or abandonment of a case, but you have to make your delays objectively reasonable to not get sanctions.

Remedies & Fees- 5 basic:

Compensatory (CD): The purpose of this remedy is to replace/compensate with monetary relief for lost or harm done by another party. (Make person whole again) There is a 4 Prong Test: 1. Fair Market Value: this is the benchmark for the measure of value 2. Interim Use Value: the value lost between the time of the taking and replacement 3. Replacement Costs: availability of substitutes in the area & their cost at the time of the taking 4. Mitigation: Person injured must take timely action to replace loss; Prudence Standard (act as a reasonable person), Timeliness Cases U.S. v. Hatahley- Action commenced to stop grazing, but before judgment was declared, the U.S. took livestock and sold them to a glue company. o Sets Objective Standard for Determining Compensatory Damages: y Interim Use Value: Between time of taking and reasonable time of replacement y Mitigation of Damages: Prudence standard and timeliness y Market Value (at time of taking): Serves as a benchmark for measure of value o 1983 (Anti-Klan Act) Important Civil Rights Statute (was brought into Fed. Crt. Through this, it established a Fed. Question under Article III by Fed. Tort claim) y Requires Wrongdoer to act under the color of law (pursuant to authority) y Deprivation of Civil Rights Norfolk & Western Railway Co. v. Ayers- Jury damage awards may be awarded even if the plaintiffs have been exposed to asbestos by third parties and/or they have not yet developed cancer o Compensatory Damages may be awarded for fear of developing cancer. Held that fear of future injury is cognizable only when accompanied by a concrete or actual injury

Punitive (PD): meant to punish and deter a party from willful and reckless activity. Also provides compensation for things lacking replacement value. (Legal basis is through the 14th Amend.) GUIDEPOSTS FOR PD: 1. Reprehensibility- How bad is what they did? 2. Proportionality- How is award comparable to CD? 3. Precedence/comparability- What is the difference between PD and statutory fines/ordinance Types of Appellate Review: 1. Denovo- Review everything because of potential constitutional violations that deal with the 14th & 5th Amend. 2. Abuse & Discretion- Judge has a certain amt. of discretion he is allowed, has to stay in that. 3. Clearly Erroneous- Judge can be really wrong just not completely misreading law.

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Gore v. BMW- Creates 3 guideposts test to excessiveness of PD. (see above under appellate Review) Carey v. Piphus- Must show proof of injury to collect damages under constitutional violations; if not only nominal damages can be awarded (like $3) Browning v. Harris- PD is not cruel & unusual under 8th Amend. But excessive PD violates the 14th Amend. Due process clause State Farm v. Campbell- Affirms BMW; Supreme Crt. says that 145:1 ratio is excessive under the comparability prong, suggests single digit factor instead (at the most 9:1). Also companies cant be punished for harms done outside of State. Morris v. Williams- Does extreme reprehensibility prong trump other two guideposts? Supreme Crt. said no, they look to all three guideposts in PD test. The jury can look to the reprehensibility of party to see if they want to award PD, but PD cant apply to everyone, just that person suing, others have to bring own lawsuit. Baker v. Exxon- Established the 1:1 ratio for CD-PD only in Maritime cases, because companies need to have predictability of what injuries will cost them. Why though doesnt that defeat the purpose of PD? Honda v. Oberg- An Oregon statute prohibited the review of PD. Supreme Crt. said that is unconstitutional, PD must be reviewed. Feltner v. Columbia Pictures- Supreme. Crt. Held it was constitutional for State to force jury to a set amt. of statutory damages with a max & min number. Haslip- Jury must be guided on issuance of PD because of constitutional implications. Cooper v. Leatherman- Established that Denovo is standard of review for PD.

***Equitable Remedies are meant to put you back in the original position you were in before the harm was done (Injunctions are the most common type of these). Coke/Ellesmore dispute set the precedence that equity court would defer to common law court (which distributes legal remedies). To be entitled to an equitable remedy the plaintiff had to show that the legal remedy was inadequate & injustice would occur w/out the equitable remedy*** Injunctions: requires parties to do or not do something; it can be complex & subtle or narrow & specific. Governed by Rule 65- Injunctions & Restraining Orders. 3 Types of Injunctions: 1. Temporary Restraining Order (TRO):
    Comes before discovery You do not need other party present to obtain Have to show damage and injury are very imminent and that notice was either attempted, unnecessary or too dangerous Valid for 10 days, unless extension is obtained

2. Preliminary:
    Need motion to obtain Must notify the other party and give them an opportunity to respond. Thus, hearing is needed Obtain while the case is pending Court has discretion to order one or not

Important Move: might let evidence in sooner at a preliminary injunction hearing which is bad for defendants and good for plaintiffs because it speeds up or slows down the trial

3. Permanent:
  Granted after a final hearing on the merits Included in the pleading as a remedy

Writ Prohibition: instructs party to stop doing something Writ Mandamus: Instructs party to start doing something 5 PRONG TEST FOR INJUNCITONS: 1. No adequate remedies at law- monetary cant sufficiently compensate & make party whole again. 2. Irreparable injury/harm- must be imminent/other party was cause of injury. 3. Probability of success on merits- fair chance that evidence will prove case 4. Balance of equity- harm to plaintiff outweighs hardship to defendant if injunction isnt granted. 5. Serves public interest- benefit to public if issued/ is there a foreseeable damage in the future. William Inglis & Sons Baking Co. v. ITT Continental Baking Co. Holds that if potential harm to plaintiff is serious enough, only a fair chance of success needs to be shown for TRO. Lyons v. City of LA (relates to DJ & is state action) This case was wrongfully decided, S.Crt. could have banned chokeholds. Held that damages will do because no irreparable injuries were shown (plaintiff could not show it would happen again). Norfolk v. Ayers- Fear of future injuries can only be won if accompanied by concrete & actual injury. (Most important to Buff. Creek) EBay v. Mercexchange- Created new 4 factor test for injunctions by removing- Probability of success prong in original test. Sigma Chemical Co. v. Harris- Awarded Perm. Injunction on a 3 part reasonable test (a) Protecting business interest (b) temporal scope (c) geographic scope. NRDC v. Winter- Preliminary injunctions must show probable success on merits. (Pay attention to Judge Posner imp.) Sara Creek v. Walgreen- Held that it is too complex to factor damages under balance of harms prong in Injunction test. Grupo Mexicano- Crts. Can issue TRO to stop corporations from dissipating (hiding/getting rid of) assets in an attempt to pay judgments.

Declaratory: A declaration of a partys rights without any coercive relief, such as damages or an injunction. It is governed by Rule 57- Declaratory Judgment.
  2201: Gives you the procedure for obtaining a declaratory judgment. 2202: Allows you to attach declaratory judgment to other remedies

3 PRONG TEST: 1. Case/Controversy (2201) - has to be traceable to private or state action. a) Actual Injury- show there is an injury. b) Traceability- action connects somehow to party c) Redressibilty- injuries can be compensated 2. Rights/ Relation- court is determining rights/relations of parties 3. Interest- someone who must have been injured or have interest in the remedy (i.e. pierce corp. veil to get to deeper pockets) ***Declaratory judgment has the force and effect of a final judgment. Importance: once a declaratory judgment is issued, it is appealable under 1291 as opposed to a denial which is not a final judgment and is therefore not appealable under 1291 or under 1292(a) ***

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American Machine v. Bothezat (private action)- A controversy does not need to be established before a court decides/ grants a declaratory judgment. Wilkinson v. Austin (state action)Medimmune v. Genotech (private action)- Declaratory judgment request must have satisfy the case-or controversy requirement (sufficient subject matter to warrant legal adversity)

Provisional (PR): This is a relief pending final adjudication of a dispute. Its granted before a case is heard on its merits & based on incomplete info. PRs will be decided by judges. Fight this though 14th & 5th Amend. Due Process Clause- (Pre-Seizure notice and hearing; must be given the opportunity to be heard in a meaningful time and manner) PRs are governed by Rule 64: Seizure of Person or Property: o Purpose is to protect assets in order to be able to later satisfy judgments o Can be pre-trial, trial, or post judgment o Can be used in public or private controversies o Way of maintaining status-quo  Freezing the relationship so that plaintiffs dont discover that defendant is judgment proof o Due Process Clause  What is the meaning of property for purposes of provisional remedies? y Tangible or intangible property o How do you know when a state was involved?  If federal agent was acting pursuant to a state law  Private parties can act under the color of law when allowed so by the applicable statute.

Types of PR o Attachment: Taking custody of ones property to secure a judgment o Civil Arrest o Garnishment: Making an attachment to someones wages to secure judgment or make recoveries o Liens: Asserting a legal right or interest in anothers property o Seizure: Taking of anothers property (as part of replevin or other action) o Sequestration: When tangible or intangible items are taken o Replevin: Action for repossession of property wrongfully taken; Plaintiff puts up bond for item and officer seizes it from defendant so the plaintiff can hold it until court decides issue. 5 PRONG PR TEST: 1. Private interest- claim party has to property. 2. Probable value of safeguard (applies only to private) - might move disputed property 3. Risk of erroneous depravation- prove theres basis for taking 4. Gov. Interest5. Party interest seeking remedyy y Mathews v. Eldridge- Deleted showing # 2 & 5 described above when involves a Gov. party. Fuentes v. Shevin- Requires hearing to uphold due process to uphold Provisional remedies. The only time an outright seizure is allowed is: (a) when it is directly necessary to secure a Gov. or public interest. (b) When there is a special need for prompt action. (c) A Gov. Official who is responsible to determine is seizure is justified must be initiating the seizure.

1985- Conspiracy fees, you can trigger a 1988 if you can prove civil rights violation. 1983 Color of Law/Anti-Clan Act- grants federal jurisdiction, subject matter jurisdiction. They trigger 1988 claims. If you have a 1983 case then you are eligible to receive fees based off of 1988 Provides fees in Civil Rights Actions (1983, 1985). Drafted in 1976: Makes it worth it for attorneys to take these cases rights cases. Also creates incentive to bring Civil Rights Actions. For lawyer to be able to claim fees: 1) You must be the prevailing party 2) Pass the lodestar test- the benchmark for reasonableness (reasonable hours X the reasonable rate). It gives 12 factors to see if party was successful & multiplier of fees is warranted American Rule-believes each side should pay its own costs and attorneys fees. English Rule- one side takes all. 1915- informa pauperis- Federal Court may wave costs for someone who cannot afford to pay.  Waiving Payments/Fees for Filing for Poor Plaintiffsfiling a FEDERAL lawsuit

o Rotation in Federal District Court in order to get in forma pauperis must track the rotation of judges or wheel system judges are picked at random  Get a TRO heard with an IFP and can track rotation y More useful strategically than wheel system because you can track a judge that will be more sympathetic to your theory of case o In determining if fees are reasonable:  Lodestar (reasonable fees x reasonable hours)  Risk Enhancement  Multiplier Effect o This is a waiver provision o Petitions filed in Federal District Court that allow the waiver of a filing fee o This allows for Judge Shopping  There is a quick rotation of judges for cases requiring a waiver y To get IFP signed, you can track rotation y Sometimes you can get your IFP signed and your petition heard, depending on the Judge (know the system) 2412- Equal Action to Judgment Act o Fee shifting statute that only applies in Civil Litigation against the US o Provides that unless a specific statute prohibits it, a court should award fees to a party that prevails against the US, unless the governments position was substantially justified o Get attorneys fees and costs when the US is a party and their position is either substantially unjustified or because of bad faith conduct Rule 68:- Defendant has up to 10 days before the trial to make an offer. If it is refused and the offer is greater than the final judgment the Plaintiff has to pay the Defendants attorneys fees and costs from the time of the offer. o Plaintiff must pay costs incurred AFTER offer was made. o This is not a fee-shifting statute. Defendant will only pay attorneys fees up until the point that an offer was made. o The fact that an offer is made but not accepted does not preclude subsequent offer. Encourages Defendants to make settlement offer and Plaintiffs to look at the offer. Cases: Merrick v. Chesney-offer of judgment case; and jury gave less so they could not collect fees. Shows how rule 68 works. Buckhannon- court rejected the catalyst theory and stated that throw in the towel case is alright and dont have to pay fees. Either needs a consent decree or judgment to get fees Evans v. Jeff D- Ok to include in a settlement agreement to have a waiver of fees. Allyeska- no common law doctrine for fee shifting but it is up to legislature to allow it. Confirms the American Rule. 1988 fees enacted one year after the case by the legislature.

Hensley v. Eckhert- shows the lodestar test. Footnote 3 says they will look at how young the attorney is to see what the reasonable hours is. How outrageous is the bill? If you win on 5 out of 6 claims you only get fees for 5 out of 6. Arlington v. Murphy- parents of a disable child prevailed in an IDEA lawsuit. They moved to recover fees for experts. Non-attorney expert fees for services rendered are not costs under the fee shifting acts. This applies to IDEA lawsuit only. Sole v. Wyner- winning a preliminary injunction does not make you a prevailing party. Travelers v. Pacific Gas- court will uphold fee shifting written into contracts. Richlin- a prevailing party that satisfies the EAJA may recover paralegal fees at the prevailing market rates.

Pleadings & Pretrial Motions Purpose: To give other parties notice of what claims and defenses are being raised/state the relevant facts. Pleadings should be concise, simple, & direct
Pleadings: Complaint, Answer, Reply, Surreply. Deals with mainly Rules 1-25, mainly 11, 7, 8, 9, 10, 11, 12, 15, 50, 52, 56, 59 1927- Any attorney that unreasonably multiplies the proceedings of the case to increase costs shall be subject to sanction for all costs of the trial as ordered by a court. Theory of Modern Pleadings: Want to give the other side notice of relevant facts. Gives the plaintiff the first official opportunity to tell his or her story and gives the defendant a chance for a quick, inexpensive victory. Pleadings are different from motions which are an application for an order. Rule 7: Pleadings Allowed, Forms of Motions  If Defendant makes a Rule 12 motion against the complaint and loses, he has 10 days after the court denies the motion to answer  Pre-Answer, Pre-Trial Motions y Rule 12(b)if granted, either delay or end lawsuitgiving the defendant either temporary or permanent victory at an early stage in the proceedings and cheaplyfew facts are involved, all of which are decided by judge and some law books. y Rule 12(e): Motion for a more definite statement y Rule 12(f): Motion to strike  Kinds of Pleadings: o Complaint: Begins the lawsuitPaper filed by the plaintiff specifying all claims against the defendant.  Must do 2 things: y Invoke (at least by reference) a body of law i.e. negligent operation of vehicle y Sketch a factual scenario that, if shown to be true, falls within that body of law

Contents: Rule 8 (exceptions in Rule 9) y Short statement of grounds for jurisdiction y Short statement of the claim showing pleader is entitled to relief y Demand for judgment for relief  Plaintiff wants to keep the statement short so that the defendant does not have a ton of information that can be used to dismiss the case. They are trying to protect their right to get to discovery.  Notice invokes due process clause Answer: Paper filed by the defendant responding to all of the plaintiffs claims and files any counterclaims  Defendant answers with a short statement because they do not want to nail down a theory of defense  Must respond to allegations of complaint within 20 days of service of processdefendant can either make a motion or answer (Rule 12) y Cases that survive a Rule 12 motion to dismiss are likely in for the long haul and have higher settlement values because theyre in the right court, there are no glaring procedural defects, and it is by definition, a case about disputed facts. Denial y Failure to deny is treated as an admission y In most cases, defendant denies many of the allegations o Rule 8(b) requires defendant to deny only allegations that he will dispute o Rule 8(d) provides that any other allegation that is not denied is deemed as admitted y General Denial: denies every allegation of the complaint o Court condemn casual, blanket denial because they require parties to spend needless time ferreting out the real items in dispute o Defendant who enters general denial could be subject to Rule 11 y Raise affirmative Defenses o Injecting a new fact that show the plaintiff cannot win: rule 8(c) o Different from denial o Reply: Plaintiffs response to the defendants answer  Allowable when: y Answer contains a counterclaim y By order of the court  Pre-Answer Motions o Defendant may raise certain procedural issues by motion o Alternative to answering a complaintentirely optional o Fatal Motions: Lack of Subject Matter Jurisdiction (12b1), Lack of Personal Jurisdiction (12b2), Improper Venue (12b3),

o Curable Motions: Dismissal is not required but they need to be remedied Insufficient service of process (12b5), Failure to Join an Indispensable Party (12b7)  Motions: A request to the court for an order. All requests to a court other than a complaint, answer, and reply are made by motion rather than pleading. o If defendant makes a Rule 12 motion against the complaint and loses, he has 10 days after the court denies the motion to answer o Rule 12(b)(6) failure to state a claim on which relief can be granted. The plaintiff may amend the complaint if you left something out. o 12(g) and 12(h): If you do not raise 12(b)(2-5) immediately, you waive your right to raise them. Rule 7: Pleadings Allowed; Forms of Motions: Provides that a party seeking any form of relief from act will ask for relief by motion. o Pleadings: complaint, answer, reply o Motions and Other Papers  An application to the court for an order shall be by motion, which shall be in writing, state the grounds, set forth relief sought and be signed (Rule 11)  The rules apply to all motions  All motions shall be signed in accordance with Rule 11 o Demurrers, Pleas, Etc, Abolished  Replaced by Rule 12(b)(6)so what Rule 8: General Rules of Pleading o 4 Important Aspects: Short and Plain statement, Jurisdiction, Claim for relief, Demand for Judgment o Top Down Cause of Action: Constitutional, Federal Statutes, Common Law o (a) Claims for relief: All claims shall contain a short and plain statement showing:  (1) Statement of courts Jurisdiction (Subject Matter and Personal)  (2) Statement of Claim showing pleader is entitled to Relief (COA)  (3) Demand for Judgment (for the relief the pleader seeksthe plaintiff must specify the remedy he like the court to grant: Can seek alternate forms of relief. Prayer nonbindingCourt is not limited to the remedy (Rule 54c) i.e. Lyons v. La) o (b) Defenses; Form of Denials: A party shall state in short and plain terms the partys defenses to each claim asserted. When a pleader intends in good faith to deny only a part of a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. The pleader may do so by general denial subject to the obligations set forth in Rule 11. REQUIRES DEFENDANTS TO DENY ONLY THOSE ALLEGATIONS HE DISPUTES o (c) Affirmative Defenses: Concedes that the facts as presented by the plaintiff are correct but alleges additional factors that relieve defendant from liability  Defendant has burden of proving and pleading an affirmative defense o (d) Effect of Failure to Deny: Failing to deny an allegation in the complaint or filing an ineffective denial is treated as an admission. ANY ALLEGATION THAT IS NOT DENIED IS DEEMED AS ADMITTED.

General Denial: An allegation that denies every allegation of the complaint. Condemned by court because they require parties to spend needless time ferreting out the real items in dispute. May be thrown out by Rule 11 o (e) Pleading to be Concise and Direct; Consistency:  (1) each averment of a pleading shall be simple, concise, and direct (abolishes common law form of pleadings)  (2) Alternative and Hypothetical: A party may state as many separate claims or defenses as they party has regardless of consistency (may have more than one COA) y Example: Defendant denies entering into a contract with a plaintiff and asserts that she kept her side of the bargain at the same time. y Why? o Pleadings come early so attorney sets forth possible versions of law and facts that appear plausible. o Allegations in pleadings tempered by burden of proof o Lawyer will settle on 1 version by the time the case comes to trial. o (f) Construction of Pleadings: All pleadings shall be construed as to do substantial justice Rule 9: Pleading Special Matters o (a) Capacity o (b) Fraud, Mistake, Condition of the Mind: In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.  i.e. General allegations that defendant fraudulently caused plaintiff to sign a contract is insufficient  Plaintiff needs to describe in detail representations made by defendant and how they were incorrect. y You need a lot of details y Typically dismissed with prejudice (Dismissed with prejudice-after adjudication on the merits barring the plaintiff from prosecuting any later lawsuit on the same claim) y Does not apply to 1983. Rule 11: Governs the requirements for filing complaints in federal courts o Attempts to ensure truthful and good faith pleadings. The party or partys attorney must sign all pleadings and motions o (a) Signature  Each document must be signed by at least one attorney  Must have address and phone number  Do not need affidavits o (b) Representations to Court: By submitting any document to court, the signing party is certifying that:  (1) Not being filed for an improper use  (2) Legal contentions made in it are warranted or supported by existing law

(3) There is evidentiary support for the claims made in the document (4) When you deny another partys complaint, it can be supported by existing evidence  Revisions/Advisory Notes y Factual basis need not exist, as long as you believe it will after discovery y If no evidence can be found, just informally adjust your complaint accordingly y No existing lawcan argue for a new law, a modification or an extension of it in order to satisfy (b), but it must have support from outside sources. o (c) Sanctions: Can be imposed upon the attorney who submits a document that fails to comply with the above 4 requirements.  (1) How Initiated y (a) By Motion o Opposing counsel makes a complaint to counsel in violation o States part of document that is in violation o Have 21 days to fix violation (safe harbor period) o If they dont change in 21 days, file motion with the court o If counsel is found to violate Rule 11 the winning party is awarded reasonable attorney fees and law firm is held responsible for the violation y (b) Court initiative o Judge can claim that counsel has violated the requirements o Counsel must prove to the judge why they are not in violation of the rule  (2) Nature of Sanctions; Limitations y Intended to deter repeating the conduct by others who make the same mistakes y Notes: o B and C were intended to get counsel to carefully consider the documents they chose to file with the court o Threat of sanctions emphasizes frankness when and if attorney refuses to correct the violation, even after the argument is no longer defendable. o Must use a Show Cause Order to impose a sanction allowing for the counsel to remedy the problem before imposing a sanction o Court has a lot of discretion in determining the appropriate sanction o (d) Inapplicability to Discovery  Subdivisions A, B, and C are not applicable to motions related to Discovery or Disclosure that are subject to provisions in Rules 26-37 Rule 11 is served and not filed. There is a 21 day safe harbor period



o The problem with this 21 day safe harbor period is that is forces an attorney to make a strategic judgment between filing a Rule 11 motion or a Rule 56 motion, or both. If a Rule 11 motion does not work, try 12(b)(1-7) o If you dont raise 12(b)(2-5) at the beginning of the case you waive the right o 12(b)(1) is a constitutional requirement so it may never be waived o 12(b)(6) is never waived because it takes up the courts time to leave a case that is not going anywhere (efficiency argument) Rule 56: Summary Judgmenthave the case thrown out or decided right now, before trial. Rule 12: Defenses and ObjectionsWhen and how Presentedby Pleading or MotionMotion for Judgment on the Pleadings o (a) When presented:  (1) shall serve and answer y (a) Within 20 days after being served with the summons and complaint y (b) If service of the summons has been waivedwithin 60 days in the U.Sor within 90 days outside the U.S. (governs both original defendants options in responding to a complaint, but also those of other defendants parties, i.e. counter-claims)  (2) a party served with a cross-claim shall serve an answer within 20 days  (3) (a) the US shall serve an answer within 60 days (b) an officer or employee of the US shall serve and answer within 60 days o (b) How Presented: the following defenses may at the option of the pleader be made by motion  (1) Lack of SMJ (no power to render valid judgment)  (2) Lack of PJ (No power to adjudicate the claims)  (3) Improper VENUE (couple with 1404change of venue motion)(AKA: B3 Motions)(Case brought in wrong court)  (4) Insufficiency of PROCESS (summons and complaint)(Manner in which complaint was served)  (5) Insufficiency of SERVICE of process  (6) Failure to state a claim upon which relief can be granted (so what)(Before dismissing, court will almost always grant plaintiff leave to amend the complaint to allow it to cure the defect.) Howell & Conway  (7) Failure to join a party (Rule 19) (2 prong analysis: 1. Relief 2. Prejudice) o (c) Motion for Judgment on the Pleadings o (d) Preliminary Hearings o (e) Motion for More Definite Statement: within 10 days (complaint is so unclear, defendant cannot meaningfully respond) Useful to noticerarely invoked! o (f) Motion to Strike: within 20 days (Portions of pleadings that are redundant, immaterial, impertinent, or scandalous) o (h) Waiver of Preservation of Certain Defenses

Rules 12(b)(1, 6-7) are the only ones which are NON-WAIVABLE (3) Court may raise question of jurisdiction sua sponte (on its own) at any time. Never lose right to raise 12(b)(1) because if the court does not have jurisdiction, the do not have constitutional competency to hear the case.


Rule 15 governs Amendments- Amended Pleading: Pleading that replaces an earlier pleading and contains matters omitted from or not known at the time of earlier pleading
  Plaintiff must show prejudice to prevent the amendment and Burden of production is on party opposing amendment to show prejudice y Court can allow for amendments after 20 days if justice so requires

Rule 42(b): Separate Trials-in order to avoid prejudice or to further convenience, expedition, or economy. Also increases costs for plaintiff  Court uses Rule 15(a) to say there is no prejudice and Rule 42(b) to sever this issue from the initial claims Rule 42(a): Allows consolidation of trials

Rule 52- deals with bench summary judgment Rule 50- deals with jury summary judgment-allows a judge to take away jury verdict and employs his own. Your asking the judge to give a directed verdict Rule 56- Is the big kahona of 52 and 50 combined Rule 59- This is a motion for a new trial, says that affidavits must be supplied along with motion for new trial. You must show court error.

Sanctions- Comes from: 1. 2. 3. 4. 5. Rule 11 (source of monetary sanctions) Rule 16 which then ties into Rule 37 28 U.S.C. 1927 Inherent powers of the court Contempt: 2 types a) Civil- Standard of proof to show liability = Clear & Convincing its a high standard of proof because of the implications it holds to the companies. If liability is found then Comes in Damages whose standard of proof= preponderance of evidence (have to win 51%) b) Criminal- Standard of proof for this is beyond reasonable doubt

Burden of Production- this is a lowered threshold, have you met the required production to get it into the fact finder (i.e. judge)? Burden of Persuasion- Higher threshold, under whatever standard a court is operations under, you must meet that standard

Cases: Haddle v. Garrison (at will employee) - case about 1985 claim (which involves civil rights conspiracy. Under 1985 you must show conspiracy so you can show cause of action) 1985 fees trigger the 1988 fees. Holding: Loss of employment can satisfy injury to person or property that is required in order for relief to be granted under 1985. Conley v. Gibson- Creates test for 12(b)(6) motion: Ties in with RULE 8 1) Assumes all allegations are true 2) Construe facts in light most favorable to the plaintiff 3) Verbatim- case should not be dismissed for failure to state a claim unless plaintiff cant state a case beyond reasonable doubt. Dura v. Broudo: Affirms rule 8 (low pleading standard). Here the plaintiff must still show some indication of economic loss & casual connection between fraud & loss. Bell Atlantic v. Twombly (monopoly of phones): Statute that applies more than bare assumption for conspiracy/ parallel conduct unfavorable to competition. It takes the short and plain statement of Rule 9b to a higher standard. Courts want more factual matter to show entitlement to relief. It wants to make a distinction between feasible and plausible. Is this just for this specific case?...Does it raise bar for rule 9b?...does it apply to all conspiracy cases? Tele Av- PLSRA Act says that a prisoner must plead with particularity in private security actions. Its the same standard of Stratford under heightened pleadings acts under 9(b). Stratford- This shows and confirms Rule 9(b) which states in alleging fraud or mistake a party must state with particularity the circumstances causing the fraud or mistake. The plaintiffs counterclaim for fraud was insufficient. Gomez- Plaintiff does not need to allege bad faith on part of the defendants under 1983 claim. You just need to show the following for 1983 claim- (Only applies to entities acting under the arm of the state) 1) Person was acting under the color of law & 2) There was a depravation of Constitutional and federal rights Harlow- Reasonable test for qualified immunity. The court defined good faith as objectively reasonable (which means what the court thinks is reasonable) to test defendants actions. Richardson (private prison guards case)- Private prison guards are not entitled to qualified immunity because they are not an arm of the state. (Funny) the court refuses to give immunity to private prison guards even though if they are doing the same action as state guards, the court says they are not a STATE ACTOR.

Wyatt- Shows Richardson claims only work one way. A private prison guard is not entitled to qualified immunity because they arent a state actor, but they can be brought into federal court for doing a state action. Pope (hitching/ fair notice case)- held that your only entitled to QF immunity if your actions did not apply to established law that a reasonable person should have known. Here they said the guards were on notice from previous 11th Cir. Decision that hitching was not allowed. Freu (federalist issue)- State cant sign voluntarily in a consent decree then try to allege immunity when opposing party attempts to enforce that decree. Enforcing the consent decree does not violate the 11th amendment. Breusau- here it questions whether the right in question was clearly reasonably established. Would it be clear to a reasonable officer that conduct was warranted? Holding: It was not particularly established that a police officer violated the 4th amendment deadly force standards by shooting a fleeing suspect=> so therefore the officer got QF immunity under suspects 1983 action of excessive force Chatam County (drawbridge case)- county and operating of drawbridge over navigable waters wasnt entitled to sovereign immunity because they werent acting as an arm of the state for 11th amendment purposes. Scott v. Harris (bad guy driven off road)- An officer can judge potential harm to other innocent people and drivers in determining if he should drive a suspect off the road. The Officer was entitled to QFI and summary judgment here. Leatherman- Preserves rule 8. No heightened pleading standards in 1983 suits. Swikeritz- Re-affirms Leatherman in an employment 1983 suit. Pardus- specific facts arent necessary in pleading. Statements only need to give defendant fair notice of what claim is and grounds upon which it rests. Jones v. Block- exhaustion is not required for a 1983 claim. But it is required under the PLRA. It isnt up to the plaintiff to plead the exhaustion; rather it is up to the defense to use exhaustion as an affirmative defense. It allows Rule 8a (short & plain statement) to apply to prisoners Walker v. Northwest- attorney is sanctioned for improperly filing a lawsuit. Claimed 1332 diversity & there were no grounds for it (lawyer didnt do HW, court held it was not the courts job to do the HW for the attorney) The court granted 12(b)(6) motion to dismiss under lack of subject matter. Christian v. Patell (Barbie doll) Courts had enough to sanction lawyer under Rule 11, but court had no right to sanction for actions outside of pleadings. (The court could later get him for

sanctions under 1927- any lawyer who unreasonably raises the cost of trial is liable for those costs) Kuykendall- 10th circuit case. In a contempt action for contemporary civil sanctions, a jury trial is not required. Damages just need to be proven on preponderance of evidence. Liability on clear & convincing evidence. Zalinski (bad faith was found here)- If defense makes an ineffective denial of part of the complaint and knowingly allows plaintiff to continue to rely on facts that are stated on the complaint and then the statue of limitations run out; the court can use equitable powers to estope the defense from denying he owns forklift. Broad: Courts will hold you to whatever you caused/allowed plaintiff to rely on. Aquaslide (good faith was found here) - Held that it is up to the discretion of the court in allowing leave to amend under Rule 15a It is up to the non-movant to show prejudice (party opposing amendment) Laymans- held that defense must plead any affirmative defense in the complaint if you dont use them you lose them Here the defendant tried to introduce affirmative defense at trial concerning an easement to the property. Moore v. Baker- in order for a claim not to be barred by SOL (statute of limitations or shit out of luck) it need to arise out of: 1) Same conduct 2) Same transaction 3) Or same occurrence As the original claim in order to relate back under Rule 15c. The court found that there were 2 errors that occurred at 2 diff. times: pre-surgery (doc doesnt give enough info of proceedings) Negligence (doc messes up during or post surgery)

Rule 15c- Relation cannot be granted if: 1) Requires different set of facts 2) Facts alleged concern different time frames 3) Conduct was separate & distinct
Bonner (basketball case)- Court believes even though legal theory has changed, the new claim arises out of same nucleus of operative facts as the original complaint. The court allowed the amendment because it did relate back because the Counselor Malpractice & Negligence of bball court maintenance was from the same nucleus also 1) Court said plaintiff showed know bad faith 2) There was no sufficient showing or the required negligence by defense. Nelson v. Adams (cell phone case)- This was a procedural due process case on notice & hearing. Nelson has to be given notice and opportunity to respond and contend to the fee award that it involved personal liability (his assets were put at stake without his knowledge) after he was made party and before judgment was rendered. Rules 12 & 15

Mayle v. Felix- this is a very formal reading of 15c. Petitioners tried to amend petition filed after 1 yr. federal habeas corpus (means show me the body of person being charged) limitations period. Court held that it did not relate back. Defendant said that its courts rights had been violated when: statements that were made during a pretrial interrogation was allowed as admission in court. Suitors Dissent (teacher agrees) he said it goes against the ideas behind habeas corpus writs. He said the system is set up so prisoner cant get attorney until after grant of habeas corpus is granted thus allowing important things to be missed by lawyer (because he has such a short time to prepare) and thus eliminating those important things because of SOL. discrepancy between the rich and the poor Judge Jury-The reason you want a jury verdict over judge directed verdict is because it takes away the question of fairness. Also the idea of efficiency comes into effect. Rule 50- allows a judge to take away jury verdict and employs his own. Youre asking the judge to give a directed verdict. Rule 56- You must establish that there is no general issue of fact 2) Must establish the moving party was entitled to judgment as a matter of law Rule 59- You are asking for a new trial here. Hypo1/1/07: A trial begins 1/1/09: Trial ends and the defense moves for directed verdict 1/3/09 Jury Decides verdict 1/4/09: Judge removes jury verdict and grants directed verdict At 1/1/09 the judge would have made a decision. But he would allow it to proceed to a jury verdict because he is giving the benefit of doubt the jury will reach the same conclusion as him and also it will look better. But should the same decision not be reached he can reverse it back on 1/4/09. If on appeal the case would not have to be retried as a whole because the judge had already decided on 1/1/09 and it would be as if the jury never ruled Adicus: lower court should not have granted summary judgment because moving party didnt prove facts cant go to trial. Celetex- (aspectice case) shows rule 56 summary judgments are easier because there is no lights more favorable. There is the idea that 12b6 is so early on you no discovery but Rule 56 is later on so by then you have more facts and concrete grounds to base on. It Held that in order to show Prong 1 of Rule 56 (must establish there is no general issue of fact) the moving party does not have to negate the claim they just have to show absence of evidence to support non-moving parties claim

Bias (Celtics)- the issue was surrounded by an insurance policy. This case held that Prong1 under rule 56 must be proven then => the burden shifts to the non-moving party to prove there is enough facts to the Prong 1 The policy: friends are believable more then parents and there would be no insurance for cokeheads. Jones v. Clinton (follows Celetex) the claims were: 1) Title 7- SMJ 1331: sexual harassment you can bring 2 claims: A- Quid Quo Pro (this for that) B- Hostile work environment 2) 1983- SMJ 1331 3) 1985- SMJ 1331 4) State Claims- 1367 (allowed state claims to be piggybacked w/Fed. Claims) In this case a domino effect was created. When you knock out (1) you knock out all the claims until you are only left with (4). So without (1)-(3) you have no Fed. Jurisdiction so the case must be dismissed to try in State Court because you would lose your 1367. Mastotish?- Held the burden shifts to non-moving party on (1) of Rule 56. The non-moving party must show there is more than a metaphysical doubt & show there is an actual rise of facts Anderson v. Liberty Lobby- In evaluating nonmoving party assertion of (1)56, Court must draw all justifiable inferences in favor of nonmovant. Jennings (UNC Soccer) affirms the above case: Court said that sufficient evidence was given to raise triable questions of facts of all disputed evidence of her Title 9 claim. This case was decided Embank: (every single judge in that circuit would sit in and decide the decision)

Subject Matter Jurisdiction this arises under 12(b)(1) and cant be waived. Constitution
competence that arises under Article III sect. 3. Congress can restrict federal court jurisdiction (ex. 1332 and its $ requirements for jurisdiction) y The power to adjudicate a certain kind of controversy. There are two basic kinds of controversies over which the federal judiciary has subject matter jurisdiction: federal question and diversity. o Concurrent Jurisdiction: federal courts share jurisdiction with state courts: 1331 (federal question statute) and 1332 (diversity jurisdiction) can be brought in either court  Helps shape vertical forum shopping  Reasons for seeking federal court rather than state court can be mundane (federal courts have shorter waiting time), strategic (more sympathy from local judge, six person jury better than 12 person jury), and crafty (opposing lawyer uncomfortable with the more formal conduct of federal litigation). Also, Article III 1 gives federal judges lifetime tenure to shield them from political pressure so a litigant with a strong but unpopular claim or defense might prefer a federal court.  Considerations for Federal Court: y (1) Availability of favorable lawChoice of Forum and choice of law considerations, (2) More favorable procedure including

evidentiary, (3) Cost and geographic convenience, (4) Issues of local bias i.e. jury bias, (5) Enforceability of remedies, (6) Appellate procedure (timing, etc.), (7) Tactics and strategy of hanging onto forum o Exclusive Jurisdiction: cases only to be brought in federal court  Admiralty, bankruptcy, antitrust, patent and copyright, etc. o Article III, 2: limits federal courts jurisdiction to the list set forth in 2.  Concerns courts competence o No general power was given to federal courts to entertain claims based on federal law until after the Civil War reshaped understanding of federalism and the federal courts role in the enforcement of civil rights Led Congress in 1875 to enact a general federal question statute, i.e. 1331. o Language of 1331 closely parallels Article III, 2: District courts shall have original jurisdiction of all civil actions ARISING UNDER the Constitution, laws, or treaties of the United States o Article III, 2 gives federal courts authority to hear cases  Article III does not require complete diversity but 1332 limits Article III o Issue of jurisdiction can be raised at any time with Rule 12(h)(3) o In judging jurisdiction, courts look to 3 bodies of law: Constitution, statutes conferring jurisdiction, and the case law interpreting both. o 2 Constitutional claims: FACIAL and APPLIED o Most common types of civil cases filed in federal court: cases that arise under federal law and cases between citizens of different states. Federal Question: 28 USC 1331 o 1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States o Must appear as part of the plaintiffs cause of action (complaint)cannot come up as a defense, counterclaim, or in anticipation of a defense o Vertical forum shoppinglook for availability of favorable law o Corresponds with Rule 12(b)(1): Motion to dismiss for lack of subject matter jurisdiction o Arising Under jurisdiction can be challenged by attacking either:  Claimthere is no federal claim, and therefore no federal jurisdiction  Jurisdictionthere is no jurisdiction because there is no claim arising under federal law  Party arguing against jurisdiction could use a 12(b)(1) or (6) o Well-Pleaded Complaint Rule: The arising under language in 1331 requires the plaintiff to present the federal question on the face of the plaintiffs complaint. More than just including a federal issue in the complaint requires asking whether the federal element is necessary to the plaintiffs case.  Plaintiffs often fail to meet rule when a complaint both asserts a state law claim and mentions a federal defense to that claim.  Federal question must appear as part of the plaintiffs cause of action (complaint)cannot come up as a defense or in anticipation of a defense

o Burden of demonstrating jurisdiction resides with the party seeking removal. o Amount in controversy does not matter as long as there is federal question Motley (free train) well pleaded complaint rule coming from 1331. It held that it is the plaintiffs burden to plead that there is a federal question on the face of the complaint and not that it will arise out of an anticipated defense. Holmes- Held that counterclaims and answers cannot give answers to needed jurisdictional requirements of 1331. Arbaough- (moonlight caf) Holds that title 7 threshold requiring at least 15 employees is not needed to have SMJ. It said congress never said you must have 15 employees to have SMJ. This case looks like courts BENT SMJ to hear the case. Marcum v. Allen- Federal Courts can hear bankruptcy proceedings as long as the court does not touch the probate issues (which is an exception to 1331- court doesnt want these petty issues) Akinbrine- Suits for divorce, alimony, child custody falls outside of diversity jurisdiction even if spouses were from different states when it begins. Rivet- uses ideology of Motley (well pleading rule) Held that preclusions claim is deemed as a defense so it cant have SMJ under 1331.

Party Riley Beatrice Cryovac Grace: Anderson: Prince: Pittston: PPB-Mass PPB-Illinois PPB-Mass PPB-NY Inc-Mass Inc-Delaware Inc-S. Carolina Inc-Conn

In General-Mass In General -WVA PPB- NY Inc-Delaware

Buffalo Mining: PPB-WVA Inc- WVA Complex FRCP game (use chart above to make sense): If your prince and you want to go to Fed. Crt.- If prince just sues Pittson you would have diversity under 1332 so you can get into Fed Crt. To keep it in State court Pittson would use a 12b7 to say you must add Buffalo mining. Because buffalo is from the same state then they would ask for dismissal under 12b1 for the Fed Crt. Strawbridge- (complete diversity) in a case with multiple parties the existence of a single party with the same state citizenship with one member of the opposing party will destroy diversity.

Redner- plaintiff was a US citizen residing in France. Here the crt. Said since he wasnt a US citizen that intended to stay in France under 1332 a2 he would be a citizen not just a resident of a foreign state to get it into federal court and dismissed under 12b1 Saddah- Citizenship is measured at the time of filing. The one party became a citizen after the suit was filed. Aliens do not fit 1332 requirements. Aliens cannot sue each other in US fed Crt. Because 1332 was created to narrow not broaden jurisdiction. Another issue is that 1332 was not intended to allow aliens to use and shop whatever US laws are favorable to them. Ruhrgas v. Marathon- There is no jurisdictional hierarchy courts can look at SMJ(12b1) or personal jurisdiction (12b2) first. Whatever is institutionally efficient is what they will go with. Rationale= if there is no jurisdiction there is no jurisdiction who cares which one comes first. Red Cap- dismissal based on amt. of controversy requirement must be based on the face of the complaint. So therefore it is the ptiffs burden to show on the face that the amt. of controversy is met. (if the crt. Can determine with legal certainty that the plaintiff cannot recover the amt. claimed the suit must be dismissed) or the def. can challenge and must show that the amt. of controversy is not being met Ford/Citibank v. macully- Crt states that the cost of compliance with an injunction cannot be used o satisfy the amount in controversy requirement for 1332 purposes. Crt also says a claim for PD cannot be aggregated to satisfy the amt. of controversy of 1332 because they are too abstract. Lincoln property v. Roche- it is not required that the named def. as a removing party (under 1441) have to negate the existence of a potential def. whose presence in the action will destroy diversity. Also says existence of a speculative def. is unimportant for the purposes of diversity. Schimdt- national banks are citizens of states where their main office is. Supplemental Jurisdiction 1367 o Jurisdiction over a claim that is part of the same case or controversy as another claim over which the court has original jurisdiction. This broadens federal jurisdiction because a state claim may be bootstrapped with a federal claim.. o Originated in case law and has recently taken statutory form: Statutory Jurisdiction o 1367  (a) 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 y Idea that new parties and claims to a lawsuit may not have to independently satisfy SMJyou can piggyback a state claim into federal court via 1331 (also through Rule 18) y Allows court to hear non-diversity, non-federal claims. y 1331 claims and state claims get aggregated y Supplemental jurisdiction includes claims as to parties that come under Rule 20(a) (Permissive Joinder of Parties)

o o

o o

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(b) Cannot have supplemental jurisdiction over claims by plaintiffs against persons made parties under y Rule 14, 19, 20, 24 y Only kills supplemental jurisdiction over claims by plaintiff in diversity cases. y Class actions are missing (Rule 23)  (c) Decline to exercise supplemental jurisdiction if(ways to kick out opposing partys claims) y (1) Too novel or complex y (2) State claim predominates y (3) Already dismissed all claims of original jurisdiction o Federal question already dismissed y (4) Exceptional circumstancescourts discretion  (d) When claim is dismissed, party has 30 days to refile or the remainder of the Statute of Limitations, whichever is longer. y Tolling provision y Jinks1367(d) violates 5th Amendment Defendant would file Rule 12(b)(1) under 1367(c) to try to kick out state claims from federal court  If granted it is dismissed and you cannot bring it again  Remand comes from 1441 removal Defendant would file Rule 12(b)(6) to try to kick out federal claims Policy behind 1367  Efficiency  Fairness  Convenience  Cost 1367 approves result of Gibbs and codifies many of Gibbs factors. 1367 says you may not have pendant party jurisdiction if it destroys full diversity  You can have pendant parties with state law claims in federal question cases Get federal question through 1331Get state claim in through 1367a (same case or controversy) Ancillary Jurisdiction: Defendant with counterclaims, cross claims, or thirdparty claims may bring them in federal court as long as federal court has jurisdiction over the original claim Pendant Claim Jurisdiction: Plaintiff with valid federal question claims may bring along state-based claim in Federal Court.  Must derive from common nucleus of operative fact  Up to courts direction whether to hear pendant claim based on considerations of judicial economy, convenience and fairness to litigants. Pendant Party Jurisdiction: Plaintiff with valid federal claim against one defendant may bring state-based claim against second defendant over whom no independent basis of federal jurisdiction exists.  Can add in federal question cases but not in diversity cases

o Application of 1367 is a 2-part process:  (1) Determine if state and federal claims have a sufficient factual relationship to qualifywhether the 2 form part of the same case or controversy under Article III. y Arise out of the same set of factstypically involves same witnesses, evidence, etc. Claims stem from same core transaction/occurrence y Article III allows federal jurisdiction over the entire case not only over the federal question or diversity claims y Common nucleus standard  (2) Even if relationship exists, supplemental jurisdiction is still precluded if the situations fall into one of the exceptions listed in 1367 (b) or (c) y Diversity exception: In cases where jurisdiction over the federal claim is based solely on diversity 1367(b) prevents the use of supplemental jurisdiction over claims brought by plaintiffs against parties joined under certain listed rules o Rule 14, 19, 20, 24 y Discretion exception: 1367(c) allows a federal court to refuse to exercise supplemental jurisdiction over a state claim if the state claim raises a novel or complex issue of state law of substantially predominates over the federal claim, if the district court dismisses all federal claims, or in exceptional circumstances, for any other compelling reasons o Jin v. Ministry of State Security o 1367 stretches courts jurisdiction to cover parts of cases that, if brought independently, would not have fit within the district courts original jurisdiction  Broad Rule  Exceptions  Discretionary Exceptions  Tolling Provision 1367 Summary  Allows you to bootstrap state claims in federal court  Federal courts do not have discretion with regards to federal question claims  Common lawancillary and pendant jurisdiction  Defendant would file Rule 12(b)(1) to try to kick state claims out of federal court. Gibbs (pre 1367 Decisions) followed by Finley after finely 1367 was made - Gibbs Test: does state and fed claims share the same common nucleus of operative facts? Whether the plaintiffs claims are such that he would expect to try them in one judicial pleading? Finley- No basis for Fed jurisdiction even if it came from the same common nucleus of operative facts. In comes 1367-

Greigor v. regents- 1367d (tolling provision) crt. Held the state did not consent to the tolling of 1367d provisions for statute of limitations. SC held that it was wrong to hold this provision on a no consenting state. Jinks- Courts will uphold the 1367d tolling provision. Jin- the court used the 2 part Gibbs test. Crt found that the state claim was related to the fed claim because it would ordinarily be tried in the same proceeding and derived from the same nucleus of operative facts. SO the court denied the 12b1 but in the end dismissed the 12b6 Zhan- Crt held that all members/parties to an action must meet the amt. in controversy requirement Allpatah- Overruled Zhan. Crt said that just one person needs to meet the amt in controversy requirement. But in doing so the Crt. allowed supplemental jurisdiction to the other members of the diversity class action suit that did not meet the amt. in controversy individually because their claims arose from the same nucleus of operative facts. For domicile for natural people you have to have the residence where you are physically located plus intent to stay there. For corporations you have to look for the Principle place of business and place of incorporation (nerve center) Muscle center (place of the activity) Policy reasoning for 1367y y y y Efficiency- tries it all at once Fairness- You want jury to hear all problems Convenience- amt of time and place better Cost self explanatory

Ameriquest Mortgage- Court says that loose factual connection may be sufficient to confer supp. Jurisdiction as long as the facts are both common and operative. Crt wants to see if you can compare the facts necessary to prove both claims. If elements of both fed and state claims are the same then you can just bring them in once. Crt. Looks at whether or not the state claims can be resolved or dismissed without affecting the Fed. Claims. They granted Supp jurisdiction here. Szendrey-ramos- crt denies to extend 1367 supp jurisdiction to Puerto Rico claims. Found that the PR claims far outweighed the Fed claims. It required state specific rules to decide. It was also denied because it was complex and novel issues involving state law. You had a cannon 21its a lawyers conduct code under PR laws. Personal Jurisdiction arises under 12b2 this can be waived. It is the power to adjudicate; basically the court can grab the person and drag them into court. Classical form of Personal Jurisdiction: Pennoyer (legal formalism)strictly about presence y Power (sovereign state has power over anything within its borders) Modern form of Personal Jurisdiction: International Shoe (balancing jurisprudence and instrumentalism)minimum contacts y Reasonableness y Balancing Jurisprudence (defendant, plaintiff, state/interstate, judicial, policy) o Defendant is most important because Due Process rights are at stake.

o Origins: Pennoyer o Modern: International Shoe o Absorbing in Rem: McGee, Hanson, Shaffer Classical PJ State Sovereignty 14th DPC Art. 4, S. 1738, Comity y y Modern PJ Purposeful Availment Litigation relatedness Fair play; reasonableness

Personal Jurisdiction deals with power (in rem and in personam), consent, and notice Federal Courts must analyze personal jurisdiction as if it were a court of the state in which it is located (derive power from state courts)Rule 4(k)(1)(a) y Personal Jurisdiction inquiry is usually defendant driven o Look at Defendants procedural due process rights under the 14th Amendment (State action because the state courts are trying to exercise power and federal courts derive power from the state in which they sit.) o Shutts: analysis was inverted and the personal jurisdiction inquiry was driven by plaintiff. y Background: o Comes from the idea of state sovereigntyindependent nation states  Significance is the notion of boundaries  Sovereignty does not go beyond borderstangible. o Power is usually confined within the states border with the exception of Long Arm Statutes y 14th Amendment Due Process reinforces those borders y Personal Jurisdiction with respect to Pleadings: Parties are more important than claims y Discovery: You can conduct discovery on jurisdictional facts: i.e. send out interrogatories to discovery in personam/in rem facts. 4 Types of Personal Jurisdiction: 1. Inpersonam- power over the def. which can be a person or corporation (tag jurisdiction) if Im in Fla. right now and its first time Im there if someone wants to sue me they can just throw it in your face and you have to appear in Fla. court 2. Inrem- Power over a thing usually property. This is where you cant get inpersonam but you want to decide ownership over property jurisdiction over the entire world if desk is in Fla. then anyone making claim over that desk, Fla. will have jurisdiction over them 3. Quasi in rem- you adjudicate claims unrelated to the property presence of property is basis for claims if person has property in the state you can use that property to get jurisdiction over them even if it is from a total diff. issue 4. Quasi in rem attachment- So and so owes me 10k I take his car because he is not here. You seize car and attach car to claim (and sell) to try and get person in state. We look towards a 2 step process: that limits Personal Jurisdiction 1. Statutory limitations: ex. Long arm statutes. IF there is no Long arm statute you cant reach out of state to bring person

2. Constitutional Limits: person must have fair and adequate notice. 4 prongs: a) Presence- Ive never been to Fla. if Im there for 5 seconds they can serve me b) Domicile- where I live c) Appearance- if someone is trying to serve you and you show up trying to fight it that doesnt count as waiving PJ and it counts as showing up in court. d) Consent- You waive your personal jurisdiction and concede to states jurisdiction o Jurisdiction over Status y Harris v. Balk y Debtor, divorce, marriage General Jurisdiction: Jurisdiction over all claims (may be unrelated to action) o Party has Continuous and Systematic dealings with the state o Based on Pennoyer: Presence and Domicile  Jurisdiction over natural persons (residence and intent) and entities (state of incorporation and ppbnot always easy to figure out because of nerve centers and muscle centers) o Through consentcoming into state voluntarily o Corporations Presence determined by state of incorporations and principal place of business. o Individuals can be sued in the state of their domicile for all claims o Claims may be unrelated to the contacts in the State o Federal court derives its jurisdiction from the territorial jurisdiction of the state court. Specific Jurisdiction: o Claims arising out of contacts with the state o When the party does not have continuous and systematic contacts with the state o Gain specific jurisdiction via consent, long arm statutes, and minimum contacts o Specific to cases that have a substantial connection the parties in-state activity. o Consent via contract, judicial agency; state directed acts (litigation, tort, business, property, etc.) o Presence must be related to the claims o Guiding Case: International Shoe y Minimum Contacts (Defendants in-state conduct) y Continuous and systematic v. sporadic and casual y Related to/arise out of claim y Fair play and Substantial justice o International Shoe Guiding Principles For Jurisdiction: y Continuous and Systematic and related to cause of action y YES Jurisdiction y Sporadic and casual and related to cause of action y YES Jurisdiction y I.e. McGee

Sporadic and casual and not related to cause of action y NO Jurisdiction y Continuous and Systematic and not related to cause of action y Unclear y Depends on which way it is defined and proved to the court o Asahi: Deciding Fairness y Interest Balancing Factors/Balancing Jurisprudence y Defendant y Plaintiff y State/interstate y Judicial y Policy Complete Test for Personal Jurisdiction-Modern Principles of Minimum contacts o Purposeful availment y Express and Implied consent y Instate activities y Policy: if you enjoy benefits and privilege of the state you are responsible for reasonable consequences o Litigation relatedness o Reasonableness (Fair play and substantial justice) y Fairness y Foreseeability y Interest Balancing Test (plaintiff, defendant, state/interstate, judicial, policy) Spheres of Jurisdiction o Sovereignty/physical boundary o 14th Amendment DPC o Long-Arm Statutes o State Directed Acts (tort, litigation, property, business) 2 Step Due Process Analysis o Minimum contacts: state courts have PJ over defendant if he could reasonably expect to defend a lawsuit in that state y Court looks at whether defendants instate activities are: y Continuous and sporadic (general) y Sporadic and casual (specific) o Fair Play and Substantial Justice y Defendant can waive objections to PJ by: y Consent (constructive) y Appearance y Estoppel (Rule 12 (h)) 2 Types of Non-Resident Defendants: o Physically present defendants that are taggedno need for minimum contacts because this is inherently reasonable (Do a Pennoyer analysis) o Absent defendantsneed minimum contacts (Do a International Shoe analysis) y

Full Faith and Credit: Article IV, 1; 1738, Common Law Comityfederal court system is not mentioned, only references to sisters states. y Article III, 2: sets the limits of federal judicial authority. Federal courts cannot exceed those jurisdictional boundaries and Congress has the power to restrict the scope of federal judicial authority more narrowly than the Constitution does. y Article IV, 1: Full faith and credit be given in each state to judicial proceedings of every other State. o Requires one state to recognize and enforce judgments of another state th y 14 Amendment, 1: Due Process Clause y Rule 4, 5, 6, 12, 37 o Rule 12(b)(2) Motion attacks Personal Jurisdiction o Rule 12(h)(1): waive personal jurisdiction if it is not brought up as a defense y 1738: State and Territorial Statutes and Judicial Proceedings: Full Faith and Credit o The acts of legislature on a state shall be affixed by the seal of such staterecords and judicial proceedings shall be proved or admitted in other courts within the USand such acts and judicial proceedings shall have the same full faith and credit in every court within the US. y 1391, 1392, 1404-07, 1631 y Defendant must raise jurisdictional defense in either the answer or a pre-answer. o 12(b), (f), (g) make sequence critical o Making any pre-answer motion that omits a defense of personal jurisdiction is treated as a waiver of jurisdiction o Making an appearance or litigating other issues but failing to challenge personal jurisdiction results in waiver of jurisdictional defense. o Defendant must raise defense the first time she raises any issue, by way of either motion, appearance, or answer. She must litigate the claim promptly. y 3 Types of Appearances: o Special/Limited Appearance: Contest Jurisdiction (must be careful not to raise other issues besides jurisdiction or the court may consider that as consenting to courts jurisdiction) y Sometimes limited to the value of the thing o General Appearance: Waive objection to jurisdiction Non-appearance: Default ruling and the defendant will make a collateral attack Pennoyer: (is it there) you must provide notice and hearing. Here there was no proper notice. It was printed in some obscure newspaper (not good) could have attached property before trial but they didnt so that was also improper notice. Court Held it violated due process rights for court to determine rights and obligations for which it had no personal jurisdiction. y Miliken- This is before international shoe- It raises the foundation for substantial justice and fair play. International Shoe: modern form of Personal Jurisdiction. In this case there was a Delaware Corp. whose PPB was in Missouri. They had agents doing business in Washington but company wasnt paying employment taxes in Washington. Is it fair evolves into min. contacts which has a 3 part test:

Minimum Contacts Test: 1) Purposeful availement- is the state directed acts continuous and systematic. (He calls general jurisdiction) or are they sporadic and casual (which he calls specific jurisdiction) 2) Litigation relatedness- you apply this by looking at the cause of action. Is what youre suing for related to state actions youre involved in CS= Continuous & Systematic SC= Sporadic & Casual CS + Related= personal jurisdiction SC+ Related= Personal jurisdiction CS + Not related= you lean towards yes but its kind of iffy SC+ Not related= No personal jurisdiction 3) Fair play and substantial justiceHolding: the sales were continuous and systematic throughout the years (3 in this case) because of a large volume of interstate business, therefore state was permitted to enforce Personal jurisdiction for the obligations for which the Corp. had incurred.

McGee: stands for the fact a single contract can suffice for personal jurisdiction if you can show purposeful availment. Court held there was specific contacts in Cali (she had always lived there and her premiums were mailed there & corp. knew that they were doing business with someone in Cali.)Due process was not offended because there was a substantial contact with the state of Cali Hanson v. Deckla- Here the def. must purposefully avail themselves of the privileges of conducting activities within the foreign state, therefore invoking the benefits and protection of the states laws. The trust was established in Delaware & the trust moved and died in Fla. Court said Fla. had no jurisdiction because Co. had no company in Fla. and the transaction was done in Delaware. Unilateral activity cannot satisfy the requirement of the contract taking place there in the forum state. All this could have been avoided if stipulations had been added within the contract. Shaffer- Here you have the incorporated in Delaware PPB in Arizona- you have a rule 23.1 derivative shareholder suit. Here the holding of the case applies Intl Shoe to quasi rem. Issue here is that the stocks were sporadic and casual and was not related so there was no jurisdiction. This case overrules parts of if not all of Harris and Pennoyer. If Delaware had a statute that all D&Os could get sued in state court it would be fine. (Citus Statute)

Perkins- decided in 1952! It allowed continous and systematic but unrelated. In Perkins they said that if Ohio decided to extend that there was PJ it would not violate def. due process.??? (hasnt been followed by anyone else) Helicoptorres- Here the court said it did not arise out of or related. Had a foreign corp. whose ppb was in Columbia. It did have some ties in texas (negation and training done in texas and 80% of fleet and parts was bought in Texas) but court said it wasnt enough to be continous and systematic.

11/28/08 Worldwide VW- foreseeablility that cars may wind up in OK does not equal purposeful availment. The def. conduct in connection With forum state must be such he should reasonably anticipate being hauled into court in that state. They expanded the fairness test to reasonable analysis. 5 part test 1. (most important) Burden on the defendant (hes the one that has the Constitutional rights, its he that is getting hauled into court maybe in a court that is inconvenient) 2. Plaintiffs burden 3. States interest 4. Judicial interest 5. Public/policy interest Use this under the specific jurisdiction cases. General Jurisdiction- someone has so much action/activity in that state where it doesnt matter if those activities are related to the suit they have Specific Jurisdiction: see aboveASHAI- simply placing a product into market is not sufficient for min contacts. Asahi filed a cross complaint under rule 14 interpleader under joint and several. Asahi was a Jap. Corp. Court also states defending a lawsuit in a foreign legal system shall have sig. weight applied in determining the long arm statute (reasonableness) for personal jurisdiction reasons over other nations. Awareness that the sweep of commerce may bring a product into the state is not the same as directly placing that product into the state.

Burger King Corp. v. Wouderwitz- court says there is personal jurisdiction. A contract with an out of state party alone cannot automatically establish min. contact so you must evaluate the relationship. When making that evaluation: when the def. purposefully directed his activity in that forum state he must then show why jurisdiction would be unreasonable. Roucherist reached beyond Michigan and negotiated with Fla. and in doing so he was getting the benefits from a nationwide Corp. whose PPB was in Fla. Important; the court isnt saying you couldnt have this case in Michigan. However this case was filed in Fla., if it was filed in Michigan home state rule would have kept it there.

Pavolich- uses the zypo analysis concerning the internet. Simply posting info. Does not create personal jurisdiction if there is interaction over the internet there may be PJ and if your doing business there is PJ. Court held that posting a passive website was not enough to subject the def. to personal jurisdiction in Cali. Because the info was not purposefully directed towards Cali. If they decided this the other way the idea of personal availment would be completely eliminated. So court had to come out this way.

Coastal video- they were looking at how much is actually sold in a state. Coastal video used a motion for discovery, and court granted motion to find out if movie was sold in Virginia and what % of company sales was sold in Virginia.

Burnham- reinvigorates Pennoyer. It stands for tag jurisdiction (if its there then theres PJ) it deals with physical presence. Court has to use specific jurisdiction analysis. Was there purposeful availment and was cause of action related? Answer is no but court held that it was fair and substantial justice. Court is saying if your completely in that state then your subjecting yourself to that states PJ. 5 analysis test: Def: was trying to argue that it is unfair because if he leaves home state he is subject to service and PJ anywhere. Plaintiff: says it unfair for her to leave with kids from NJ State: has an interest in regulating divorce (side note. If one person lives in a state a state can grant a divorce.

Judiciary interest: wife and kids are there so its easier to try case there. Interstate interest: we have to have a system setup to handle divorce especially with the easy travel these days. The court also states that the property ownership must satisfy the lit. relation test. This alone can undermine some forms of the quasi in rem attatchment jurisdiction. Physical presence alone constitutes due process because it is continuing a legal tradition. Because you are using states power, benefits, and etc

Two types of nonresidential def.: those that are present use- Pennoyer or burnhem Those that are absent- international shoe

Carnival Cruise lines- deals with consent as a substitute for power. The court states that a reasonable forum selection clause contained on passenger tickets are valid. The way to test if they are valid is: 1) Is there a special interest in limiting the available forum a def. can be sued 2) Clears up confusion to where suits should be brought & this saves time and money of pretrial motions and determination of the correct forum 3) The class of plaintiffs benefit in some way. Court says they do benefit (plaintiffs) because it limits expenses and it makes Carnival not have to do worldwide litigation. Court says number 1 is good because: PPB of carnival is in Fla. and ships arrive and depart from Fla. The court found no fraud bad faith or consciouability. Hess v. Polowski (?) Court sustained jurisdiction over a nonresident defendant who had been involved in an accident on the Mass. highways Removal 28 USC 1441, 1446, 1447 o Givens defendant an option to second guess the choice of forumONLY THE DEFENDANT CAN REMOVE and he has the burden to state why the case should be removed  Point is to protect the defendants interest

o o

Fairness policy: Out of state non-resident might encounter prejudice in state court. Removal is contingent upon whether it might have been brought in federal court originally Ways for plaintiff to avoid removal:  Do not plead a federal question  Add a non-diverse party  Amount in controversy not satisfied 1441: Defendant in a state law case may remove a case of which the district courts of the US have original jurisdiction  Entire case: The whole case must be removedif one or more claims do not fit within 1441, removal is impossible  Defendants: Only defendants may remove case and must give notice  District Courts have Original Jurisdiction: State court action must be one that could have been filed in federal court originallyfederal court must have federal question, diversity, or supplemental jurisdiction over all claims in the case.  Removal Based on Federal Question: Determining whether state court case presents a federal question works similarly to how it would had action been filed originally in federal court. Court applies the well-pleaded complaint rule to determine if the complaint states a federal question  Removal Based on Diversity: With 2 exceptions, diversity in a removal case is treated just as it is in a case originally filed in federal court. y Home-state Removal Bar of 1441(b): Removal is impossible if any of the defendants is a citizen of the state in which the state action is brought. y Time for Determining Diversity: In removal cases, diversity must exist in the state court case both when the case was filed and at the time of removal o Exception: Case in which the parties are not diverse is improperly removed but the district court fails to remand, any judgment rendered by the district court is valid provided that diversity did exist at the time judgment was entered. Caterpillar Inc v. Lewis.  Removal Based on Supplemental Jurisdiction: Cases often involve many claims and many parties. When federal question and diversity jurisdiction do not exist for certain claims in a case, it is necessary to consider supplemental jurisdiction when Defendant attempts to remove.  Removal of Separate and Independent Claims: When plaintiffs case involves state law claims that are separate and independent from the federal claims 1441(c) may allow removal of the entire case.  Artful Pleading Doctrine: If complaint is crouched purely in terms of state law but in fact contains a disguised federal claim, case can be removed as a federal question 1441

(a) Any civil action may be removed by the defendant or the defendants. Cases go to district court of the US for the district and division embracing the place where the State action is pending.  (b) 1st Sentence: Any civil action.arising under the Constitution, treaties, or laws or the US shall be removable without regard to the citizenship or residence of the parties = 1331. 2nd Sentence: Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought = 1332: HOMESTATE RULESays that defendant cannot remove is he is being sued in his home state. y Limitation: diversity cases may not be removed if one or more of the defendants are being sued in their home state  (c) Whenever a separate and independent claim or COA within the jurisdiction conferred by 1331 of this title is joined with one or more otherwise non-removable claims or COA, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates--1367(c)(2) y i.e. When federal question joined with non-federal question, entire case may be removed y Cross-reference to 1367(c)(2): state predominates federal claim 1441 Summary:  Does not come from the Constitution but was enacted by statute in 1789  Most removal occurs in civil cases  Because the defendant removes, he has the burden of proof  Removal can only go from State to Federal Court  Under subsection (b) y If there is a federal question, diversity and citizenship do not matter y Homestate rule: Cannot remove if you are from the state where the action is pending (only applies to diversity jurisdiction)  CASE CAN BE REMOVED ONLY IF IT COULD HAVE ORIGINALLY BEEN FILED IN FEDERAL COURT Difference between 1367 and 1441:  1367: when case is dismissed, you must refile in state court  1441: case is remanded to state court 1446: Procedure for Removal  Notice: Defendant files notice of removal with appropriate district court  Timing: Notice must be filed within 30 days after the defendant receives notice that he is a defendant in a state court case 1447: Procedure after Removal Generally  (c) Contains a pair of provisions concerning remand to the state court. The first, a motion to remand on the basis of any defect other than lack of SMJ has a 30-day time limit. The second requires remand if the district lacks SMJ.

Courts have interpreted the first to apply to problems that would prevent removal but would not have destroyed federal jurisdictionfor example if one or more of the defendants seeking removal was a citizen of the state where suit was brought The second refers to facts that negate federal SMJfor example, absence of a federal question or diversity.

Caterpillar- court found that district courts erred for failure to remand was not fatal to cases outcome as long as the federal jurisdiction requirements are met before the time judgment is entered Judgment stands because diversity was met before judgment. Court let it slide under the judicial/economy policy. The court uses the argument that under 1332 it doesnt say that it has to be at the time of filing that the jurisdiction has to be met (rare kind of slipped under radar) Groupo: court must meet look for citizenship at the time of filing. Even if the citizenship is met before judgment it must be dismissed Lapideese: when the state voluntarily removes the case to the federal court it surrenders its sovereign immunity Sygenta- court held that section 1651 (all writs act) does not provide an independent basis for SMJ Beneficial National Bank- the state claim may be removed to federal court when congress expressedly provides for it or a fed. Statute completely expresses the action through pre-emption. Congress intended that the Banking act be the only cause of action for usury claims therefore it was allowed to be removed into fed. Court. Martin v. Franklin- under 1447c attorneys fees should only be rewarded when a moving party lacks an objectively reasonable basis for seeking removal Kircher v. Putnam- If court determines there is no jurisdiction for removal the decision to remand cannot be appealed based on 1447d. If court doesnt have SMJ then the court of appeals never had a right to review/hear the case. (Side note when it is at the courts discretion to accept claims it might be able to appeal (recent case he was talking about in class thats going on now)) Watson v. Philip- Philip tries to remove to federal court under 1442a1. Their argument is that the acting under language is broad, and because of that they should be allowed to remove because petitioners claims attack the methods used by the FTC. However court holds the language is not this broad and the FTCs directing, supervising, and monitoring a companys activities is not the same as being actors. (Involvement does not = action under 1442a1 purposes)

Powerex- uses same Kircher idea. When district court removes a case because it is lacking SMJ, the remand is covered by 1447c and shielded from appeal on 1447d. If trial court says there is no jurisdiction then court of appeals lacks power to say otherwise. Removing party tried to use foreign immunity act to carve out exception to 1447 but court refused. Mullane - Notice by publication does not suffice for out of state residents if alternative means are available to give actual notice - To fulfill due process, notice must be reasonably calculated to inform all related parties of the action - Since the addresses were known, they needed to use them. If they did not know the addresses and there were no other means, then publication could have been sufficient. Dusenberry - Uses the Mullane test - Reaffirms that notice must be reasonably calculated to provide interested parties with notice and chances to respond - The sending of mail to both the prison where the def. was being held and the address where the incident occurred (moms house) suffice for proper notice - Did not have to show actual notice it was received. Only had to be reasonably calculated it was received. - Heroic efforts are not required Jones v. Flowers - Original Justice Roberts opinion (his first opinion in the Supreme Court) - If the state is aware that notice was never obtained, the state needs to look to other available means - The fact that the certified mail was returned unsigned for twice leads the state to be aware that notice was never obtained - Court does not make a bright line rule for what is needed to show notice has been given - It is up to the state to prove reasonable efforts were made. - Footnote: they do not need to go to extraordinary means like picking up a phone book - By seeing that the certified mail wasnt being signed for, they should have sent regular mail. Gibbons - To get personal jurisdiction over a non-resident, the defendant must be within the reach of the state (through a long arm statute) - Long arm statute must be valid under the constitution (see Due Process) - Long arm statutes allow states to reach beyond their borders to get personal jurisdiction over non-residents - Two prong analysis 1. Is there a long arm statute? 2. Is it valid under the constitution?

Def.s actions did not fall under the long arm statute because she was not engaged in any Florida activity other than defending the current lawsuit that is required by the Florida long arm statute Court says that if personal jurisdiction collapses, venue also collapses Depending on state statute, litigating other actions may or may not give rise to purposeful availment for personal jurisdiction purposes o Here it did not count, but in other courts it can count

VENUE and TRANSFER * Court has power to locate suit in a particular placeparticularly when there is an intersection of SMJ, PJ, or venue y y y y Venue breaks down into convenience/efficiency and justice Venue is statutory: 1391, 1392 Venue locates litigation not just in a state but in a particular district Forum non conviens is a dismissal motion: o Motion will not be granted if defendant cannot prove that plaintiff has an alternative forum which can exercise jurisdiction over all of the defendants and can allow for complete relief o Method of review is abuse of discretion Venue 1391 o 1391adiversity (1332)  Where jurisdiction is founded only on DIVERSITY, can file y (1) where defendant resides (easier to prove than domicile) y (2) where events occurred (where claim arose) y (3) where any defendant is subject to PJ at the time the action commenced if there is no other district in which the action may otherwise be brought o Move in order o 1391bnon-diversity (1331 federal question)  Where jurisdiction is founded on NON-DIVERSITY, can file y (1) where defendant resides y (2) where event occurred y (3) where any defendant is subject to PJ if there is no other district in which the action may otherwise be brought o 1391c  (1) when suing corporation, it is deemed to reside in any district which has PJ over the corporation  (2) If jurisdiction is had in more than one district, then look to area of sufficient or greatest contacts o 1391d  Aliens can be sued in any district court y actions premised on 1331 can get non-aliens circumventing (b)(3) o Domestic must still meet requirements

y y

y y y y y

o 1391e  When an officer or the US is involved as a defendant, can file y (a) where defendant resides y (b) where events occurred y (c) where plaintiff resides if there is no property involved o 1391f  Discusses how a foreign state can be sued Venue 1392: Defendants or property in different districts in same state 1404(couple with 12(b)(3) in case one fails) o Motion for Change of Venue  Tells the court that if they will not dismiss on a 12(b)(3), then it should at least be moved y Applies to 1631Transfer to cure want of jurisdiction o 1391 is a check on 1404cant 1404 anywhere o Theory of 1404  Convenience for defendant  Interest of Justice 1406Transfer o Sua sponte  Courts own initiative 1407: Multidistrict litigation: mdl court cannot transfer case to itself for trial (Lexecon v. Milberg Weis) NOTE 5 177 Rule 4 1631: Transfer to cure want of jurisdiction Double Forum Shopping o To file in a state and then transfer to another state while keeping the transferring state laws (might do this to keep more favorable law) o Horizontal Forum shopping is okay because the same state law would apply in a different court o Vertical Forum shopping is not okay because you get different law to apply which may change the outcome of the case Forum non conveniens o Discretionary doctrine whereby a court which has jurisdiction over a case may decline to exercise it, as there is no substantive reason for the case to be brought there, or if in presenting the case in that court it would create a hardship on the defendants or witnesses. o Its declining jurisdiction over a matter where, in the interest of justice, it would be more appropriately tried in another location based upon convenience to the parties and witnesses, and the best interests of the public o MOTION TO DISMISSNOT TO CHANGE OR TRANSFER VENUE (not analogous to 1404) o Motion will not be granted if defendant cannot prove that plaintiff has an alternative forum, which can exercise jurisdiction over all of the defendants and can allow for complete relief. o Notable distinction between the application of FNC dismissal in federal and state courts

Federal courts rarely utilize dismissal option because if another federal court is available as a proper forum, they need only resort to transfer y Only when the more convenient forum in foreign, which is a rare occurrence, will the federal courts have to dismiss  State courts end up exercising right to dismiss for FNC because the more convenient forum is usually another state and state courts cant transfer a case to a court in another state. o FNC available only to the defendant because the plaintiff may voluntarily dismiss the first action. But, plaintiff may seek transfer under 1404 (Ferens v. John Deere Co.) Venue locates the location within certain districts. Proper venue is determined by two things: o (1) Party geographywhere the parties are o (2) Event geographywhere the conduct or the transaction took place

DK C. Act allows for world wide service of aliens 1391(b) provides that aliens are able to served in any district This overrides special venue laws that require venue to be more specific Court uses 1391(b)(3)

Piper Aircraft - Plaintiff may not defeat a motion to dismiss under Forum Non Convenience merely by showing that the substantive law of the alternative forum is less advantageous than that of the present forum - It has to consider the burdens and interests of the parties and the states - In order to keep the court from granting a Forum Non Convenience, the plaintiff must show that the other forum is grossly inadequate - Gives the court a lot of discretion (usually up to the Judge) - Court looks to its ability to apply foreign law - Court dismisses and says, go file in Scotland o Would need to apply Scottish law o Evidence was in Scotland o Parties were in Scotland Van Dusen - 1404 only applied to defendants - Only defendants could transfer - Rationale is because the plaintiff chooses where to file, so they should not be allowed to transfer o If they file in the wrong place, they could just dismiss complaint and file elsewhere Ferens - Expands Van Dusen to both plaintiffs and defendants

Pltf. also has ability to transfer under 1404 Court that it is transferred to must apply the laws of the court it is transferred from Allows Double Forum Shopping Encourages forum shopping for the most favorable laws

Sinochem - Supplement - Know this case - Defendants filed dismissal motions for lack of subject matter (12(b)(1)), lack of personal jurisdiction (12(b)(2)) and forum non convenience - Court decided there is no hierarchy - If it wishes to grant the forum non convenience, it does not need to decide the 12(b)(1) or 12(b)(2) CHOICE OF LAW: ERIE y 1652 Rules of Decision Act (Judiciary Act of 1789) o State law provides decisional law when there is no applicable federal statute or constitution o The laws of the several states, except where the Constitution or treaties of the US or Act of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the US, in cases where they apply o Laws of several states = statutes, local customs that govern property, and state constitutionwhere these do not exist, Story says we are free to do whatever we want (such as creating federal common lawbut this applies enormous forum shopping issues.)  Applies ONLY to 1332 diversity cases  1331 federal question cases MUST apply federal law Rules Enabling Act of 1938 (2071 Rule Making Power) o Authorizes Supreme Court to make rules regarding procedure in Federal courts and appellate rules of procedure o Allows for drafting of FRCP 2074: Rules are submitted to Congress for review before taking effect 3 Kinds of Conflict Between State and Federal Law: o Statutory conflict (procedural or substantive)  Stewart y Guided Erie o Is the statute on point and controlling? o Is it a valid exercise of constitutional power? ALWAYS YES o Rule Conflict (proceduralFRCP, FRAP)  Hanna and Woods y Guided Erie o Is the rule on point and controlling? o Is it consistent with the Rules Enabling Act? ALWAYS YES o Policy Conflict  Byrd and Gasperinilooks constitutional but now ???

y y

y y y y y

Sometimes no valid federal statute or rule on point then look to state law and ask if it is outcome determinative Conflict between federal constitutional provision and state law: US constitution is the supreme law of the land (Article VI, Para 2). If constitution mandates a practice different from state law, the constitutional requirement prevails Conflict between a federal statute and state law: If federal statute is arguably procedural, the statute must be applied if it conflicts with state practice because Congress has the authority to enact the statute, and valid federal statutes are the supreme law of the Land. Conflict between a Federal Rule and a State law: If FRCP conflicts with state law, the federal rule applies as long as it is valid (does not abridge, enlarge, or modify a substantive right under second section of REA) Conflicts between a Federal Judicial Practice and State Law: A diversity court should choose the state rule if the difference between it and the federal practice could prove outcome determinative. Why is horizontal forum shopping ok but vertical is not? o Horizontal maintains state law because you are looking to different states, thus there are no inequitable outcomes  Jury differentiation is ok. The Erie Problem: When a federal court sits in diversity jurisdiction, what law should it apply? y
 Nature of Issue Matters of Clearly Substantive law (bound up with the rights and obligations created by state law) Matters of form and mode (procedure) where applying separate rule would likely affect the outcome Matters of form and mode (procedure) where applying separate rule would likely affect the outcome, but there are important federal countervailing considerations Matters of form and mode (procedure) where applying separate rule is unlikely to affect outcome Erie analysis after Byrd Federal Court Should Apply state law (Erie)

Apply state law (York)

Apply federal law (Byrd)

Apply federal law

Swift v. Tyson- pre-erie case. Question over a bill exchange and the court says that the Federal court can do as it pleases and apply whatever law they want. Federal courts when sitting in diversity can apply any law they wish when there was no federal law on point. This allows the creation of federal common law without any basis for why. This decision cases three problems: 1) inequity in decisions, 2) lacks uniformity and consistency, and 3) favors the plaintiff because it allows the plaintiff to forum shop.

y y

y y

y y y

y y y

Black and White Taxi- shows exactly what the courts want to avoid in Erie. This case discourages forum shopping, plaintiffs tried to forum shop but the court ruled against it. Erie- overrules Swift. Twin aims of Erie: 1) discourage forum shopping 2) prevent inequitable results. Through their decision the court is stating that there is no federal common law and that federal courts need to look to the state forum for governing law. Another issue is that there are inconsistencies on theory of case and theory of proof (New York allowed for regular negligence while Penn. allowed for gross negligence). Claxton- applies the Erie doctrine to apply to conflicts of law. Conflicts of law is a set-up for when states are to follow the laws of other jurisdictions. Guaranty Trust v. York- statute of limitations case where the court says that the district court must apply the states statute of limitations. Court creates the outcome determinative test: if the outcome is substantially different, federal courts must apply state laws of the forum state in order to avoid unjust and inconsistent results. Ragan- state law rather than federal law will determine when an action will commence. Cohen v. Beneficial-a federal court sitting in diversity must apply a state statute granting a corporation the right to require a plaintiff to post a bond for their shareholder derivative suit. Bernhardt- court narrowly construed the federal arbitration statute and held that under Erie the state law concerning the enforceability of arbitration agreements should control in diversity actions. Woods- court allowed a state statute that closed the doors of state courts to out-of-state corporations who had not qualified to do business by paying taxes in Miss. Courts held and stated that this statute closes the federal courts as well. Statute applies to both federal and state courts. Byyrd- plaintiff injured in a construction accident. Defense says that he is an employee and subject to workmans compenasation. Under the test, there is only a possibility of different outcomes. If we have no governing state law but there is strong federal policy then the court should follow the strong federal policy. Federal policies may be strong enough to trump state interests. This requires a balancing of state interests v. federal interests and brings into question the 7th Amendment. Guided Erie- if there is a conflict between federal and state statute or rules- valid federal rule or statutes on point then federal rule or statute wins or prevails. Must look to whether: 1. If the fed. Rule or statute is valid under 2071 & 2072 (rules enabling act) 2. Is it on-point and controlling: controlling is does it relate to the outcome and on-point is does it relate to the issue on-hand. (Hanna cite for fed. Trumping state) (Stewart cite for state) Unguided- used if there is no federal rule or statute on point or controlling- use York outcome determinative test: if the state law is not outcome determinative then the federal court may use federal law but if the state law is outcome determinative then you ask: a. is there an affirmative countervailing federal policy b. will the twin aims of Erie be upheld. Hanna- guided erie- conflict between mass. state law and R. 4. Federal rule of civil procedure controls service of process and trumps state law governing service of process. Sybech- rule of enabling act is constitutional therefore so are the rules. Never heard of a rule overcome Burlington- Alabama statute stating that the plaintiffs should be awarded an extra ten percent on a failed appeal. State statute conflicts with a federal rule (guided erie). Since the federal rule controls the state law is thrown out.

y y

y y

Stewart- guided erie- conflict is between 1404 and state common law. Question is whether the court should enforce a contractual forum selection clause. Court uses the federal statute and allows the enforcement of the clause. Gasperini- unguided erie- 7th amendment re-examination clause v. state statute. Court states that the re-examination clause barred federal appellate court in directly applying the state statute. However, the district court could apply the state statute and the appellate court could review using abusive discretion. Remittor- jury comes back with 10 million damages. Judge can say 10 million is not going to happen but if you accept 2 million then I will not grant a new trial and everything is done. Allowed in both federal and state courts Addittor- if the jury comes back with 2 million and the judges says no war this doesnt make sense then he can tell defendant that if you accept payments of 10 million then I will not grant a new trial and everything is done. This is allowed in some state courts but not federal court, it has been ruled unconstitutional there. Semtek- unguided erie- the original complaint was filed in California state court. It was then removed to federal court based on diversity. Later dismissed because the statute of limitations had run. Suit was then filed in Maryland which had a longer statute of limitations. The Maryland court then dismissed based on res judicata. However the court reverses their decision saying that the dismissal for a 12(b)(6) was based on a procedural defect and is not claim precluded in another forum. The court balanced Maryland state interests v. the federal interest of uniformity and the court found that Marylands interest is more important and wins.

4 ---------claim------------>( <----- intervention (R.24) --------4/( 4<--------counterclaim-----( (compulsory/permissive) ( <-----interpleader (R.22) -------> ( (


Impleader (R.14)

3rd Party (

(note: the ( that brought in the 3rd Party ( then becomes the 3rd Party 4)

y y

y y

Joinder: known as complex litigation or multiple litigation Joinder of claims and parties: increases the breadth of a suit by permitting parties to combine various claims and to add additional parties o Advantages: Allows a single suit to adjudicate multiple claims against multiple parties o Disadvantages: Litigation can become intricate Joinder of Claims: A plaintiff may have more than one claim against a defendant, and a defendant may have claims against a plaintiff Joinder of claims by plaintiff o Common Law:  Plaintiff could join only claims using the same writ but could do so regardless of whether the claims were factually related.  Plaintiff could also join alternative versions of the same grievance by alleging each in a separate count, as if each count referred to a separate occurrence  Misjoinder could lead to a successful demurrer or even the upsetting of a verdict; the defect was not waived by failure to make an early objection.  Equity was more relaxed than common law (broader scope) y Joinder was generally permitted when claims shared a transactional relationship and raised common issues. y Limits: bill in equity could be found objectionable for multifariousness, meaning that it combined too many claims. o Federal Rules: eliminated all barriers to joinder of claims a plaintiff  Rule 18: A single plaintiff can join any and all claims he has against a single defendant y Permits joinder but does not compel it: there is no compulsory joinder of claims. y Plaintiffs own interest is often served by joinder of all claims, or at least all related claims, he has against a defendant. y Trial Management problems solved by Rule 42(b): judges can sever claims for trial convenience o Joinder and Jurisdiction:  (1) Do the principles of joinder, governed by the Rules, permit combining these claims?  (2) Assuming that joinder is allowed by the rules, does the federal court have jurisdiction over the state claim thus joined? Claims by the Defendant: Counterclaims o Common law  claims against defendant did not exist. The defendant who had such a claim could bring a separate suit or, in a limited number of cases, set off her claim

y y y

against the plaintiffs (reduce the plaintiffs recovery) but could not herself recover in the original action o Federal Rule  Rule 13: permits defendants to assert such claims. y Compulsory and permissive counterclaims Rule 13: Counterclaim and Cross-Claim o (a) Compulsory Counterclaim: any related claim arising out of the same transaction or occurrence o (b) Permissive Counterclaim: any claim against an opposing party which is not related to the original transaction or occurrence (at courts discretion and requires SMJ or PJ) o (c) Counterclaims will not reduce value, but can exceed (cant offset other claim) o (g) Cross-claim against Co-Party  Consequences of not asserting a claim against an opposing party that arise out of the same transaction/occurrence may result in res judicata waived/lost opportunity to plead Rule 14: Third Party Practice o Requires derivative liability (can implead another defendant that is also liable) o Impleader becomes 3rd party plaintiff, impleaded party becomes 3rd party defendant. Rule 18: Joinder of Claims and Remedies o (a) Joinder of Claims o (b) Joinder of Remedies; Fraudulent Conveyance Rule 19: Joinder of Persons needed for Just Adjudication o Indispensable party rule o Corresponds with 12(b)(7)dismissal rule o Bring in parties that need to be joined because they have an interest in the action or because they are needed to grant proper relief o If necessary party cannot be joined, court must decide whether to proceed without them o Joined parties must be subject to PJ and Joinder cannot destroy diversity for SMJ o Factors to determine whether 3rd party is indispensable  The extent of prejudices to the present parties that the 3rd partys absence may bring  The extent that prejudices may be avoided or reduced by other means  The adequacy of judgment without 3rd party presence Rule 20: Permissive Joinder of Parties o (a) All persons may join in one action if they assert any right to relief AND if any question of law or fact common to all these persons will arise in the action o (b) Separate trials: court may use its discretion in separating case  Can also sever under Rule 42 Rule 22: Interpleader: o Federal Interpleader Act: codified by 1335, 1397, 2361  Broadens the circumstances in which interpleader is available 1335  Removes limitations on federal SMJ 1335(a)  Permits nationwide service of process 2361  Expands venue provisions to permit venue where any claimant resides 1397

1711-1715: codify the CLASS ACTION FAIRNESS ACT-2005 o CAFA: makes broad use of the principle that Article III requires minimal diversity o Grants original jurisdiction to the federal courts in class actions in which any member of the class of plaintiffs possess the requisite diversity with respect to any defendant o Coupled with $5 million aggregate amount in controversy requirement o 1453: such suits may be removed by any defendant

y y y y

y y

Plant- plaintiff sues under the truth-in-lending act and the defendant counterclaims for the money owed on the loan. Court needs to determine whether it is a compulsory or permissive counterclaim. Holds that the counter-claim for the remaining money is compulsory under 13(a). Determination for compulsory: o Are the issues under fact and law rasied by counterclaim the same? o Would res judicata bar a subsequent suit of the defendants claim? o Would the evidence support both the defendants and plaintiffs claims? o Is there logical relatedness to try the claims in one suit? o Permissive- claim has its own jurisdictional basis. Mosley- ten employees brought a discrimination suit against GM and union under Title VII allegations. 20 (a) joinder of parties case. Two elements of joinder: The right to relief must be asserted by or against each plaintiff or defendant relating to or arising from the same transaction or occurrence. Some question of law or fact must be common to all the parties. Court held that discrimination was enough to join parties even though each party suffered in different ways and had different facts. Rule 42(b)- sever trial Rule 18(a)- joinder of claims Rule 18(b)- joinder of remedies Price v. CTV- rule 14 joinder by the defendant, impleader. Price is suing Latko for a defective chicken coup. Latko then brings in the nail manufacturer. Court states that you can share not shift liability in defense. Yes I built a defective chicken coup but because of the defective nails the coup malfunctioned, we were both liable. Watergate- there must be derivative liability under R. 14(a). You must say it was also him not that it was just him. Court determined that it was an attempt to shift and not share so joinder was denied. Sims- substantive state policy of consequence to the action. States that eries holding is limited to federal common law and does not include congressional acts. States that the creation and history of the Federal Rules of Evidence are congressional acts and Erie does not apply. Evidence in diversity suits are usually governed by federal law and state law will not apply unless a fact is of consequence that affects a substantive state policy. Court does not find that state policy and under federal rules the seat-belt information should have been admitted at trial. However, the court upholds the lower courts decision under the Harmless Error Doctrine. Harmless Error Doctrine- if the trial court made a mistake according to the court of appeals or s.c the appellate court looks to the record of the case to determine if the error of the court was significant enough to require a new trial. If the court determines that the error was not

significant enough then it fits under the Harmless Error Doctrine and the decision from the lower court is upheld. Tough hurdle to get around.

o Allows a non-party who wishes to become a party to intervene if he meets the requirements of permissive intervention or intervention of right for parties outside the box o Intervention must be timely o A party will not be allowed to intervene if complete diversity will be broken o Rule 24: Intervention  (a) Intervention of Right y (1) If a US statute allows it; or y (2) 3-pronged analysis o Timely o Interest in property or transaction/interest at risk (interest is at risk of being impaired) o Adequacy of representation  Diligence and competence  Concurrent conflicts (proper representations of named and unnamed parties)  (b) Permissive Intervention y (1) If a US statute allows it; or y (2) applicants claim is related to the main action by question of law or fact (commonality like 20a, 23a2) y (3) Court has discretion and should weigh any delays and prejudices to the original parties by allowing intervention. o Permissive interventionyou can intervene permissively if you have common question of law or fact, when deciding on motion, court must consider whether it will unduly delay rights or prejudice the original parties. o Rule 24(a)(2) allows anyone, upon timely application, to intervene in an action if the applicant claims an interest relating to the property or transaction, which is the subject of the action, and that interest is subject to possible prejudice and lack of adequate representation. o An interest in an action, which could be subject to possible prejudice and lack of adequate representation, meets the requirements for intervention. o A party has unconditional right to intervene if the party can prove  (1) risk of practical impairment of a relevant risk  (2) Timely application  (3) Lack of adequate representation o Timeliness:  Flexible determination of timeliness made in the discretion of the Court; Discretion in determining timeliness applies to Rule 24, 19, and 30; Court considers:  (1) How long the applicant knew of his interest before making the motion  (2) Prejudice to the existing parties from any such delay  (3) Prejudice to applicant if the motion is denied  (4) other unusual circumstances

y Allows a party, against whom two or more mutually exclusive claims relating to the same property or fund have been asserted, to join the claimants in the same proceeding and require them to litigate among themselves their rights, if any, to the property or fund. The purpose is to protect the stake holder. There are two types, Rule and statutory. Federal Interpleader Act: Enacted in order to clarify certain procedural uncertainties o 1335  Broadens the circumstances in which interpleader is available  Section A removes limitations on federal SMJ o 1397  Expands venue provisions to permit venue where any claimant resides o 2361  Permits nationwide service of process Rule 22 closely resembles the Interpleader Act but it is subject to normal rules for SMJ, PJ, and venue

3 stages in an interpleader action 1.) Interested or disinterested stakeholder 2) Can the defendant interplead? 3) Actual adjudication on the merits (What interepleader do we apply statutory or rule?)
Issue Statutory ( 1335) Rule 22

SMJ Diversity
Minimal diversity; determined as b/w claimants Complete diversity; stakeholder on one side and claimants on the other (relates to 1332)

$500 in controversy $75,000 +

PJ Service of Process
Nationwide service of process ( 2361) Residence of one or more claimants ( 1397) Need PJ; service under R.4


(1)Residence of any claimants (if all from one state); (2) dist where dispute arose; (3) dist where property is; (4)dist where any claimant found if no other basis for venue (relates to 1391) Only basis is provision 2283 for stay where necessary in aid of jurisdiction Anti-Injunction Act


Statutory authority for injunctions ( 2361)

y y

Statutory Interpleader makes it easier to bring claims, but one must post bond or give property to court. In interpleaders you have stakeholders and claimers. Stakeholders can be interested or disinterested. (Unknown owner of the 4 paintings case) Cohen v. The Republic of the Philippines-

Class Actions
y Rule 23- (before you file a class action you have to make a motion for class action) o (a) Prerequisite to a Class Action (need to meet all 4 requirements, then go to Rule 23(b)) One or more of the members of a class may sue or be sued as representative parties on behalf of all only if:  (1) NUMEROSITY: class is so numerous that joinder of all members is impracticable  (2) COMMONALITY: there are questions of law OR fact common to the class

If there are problems with 23(a)(2) there will be problems with 23(b)(3)  (3) TYPICALITY: the claims or defenses of the representative parties (named plaintiffs) are typical of the claims or defenses of the class (unnamed plaintiffs)  (4) ADEQUACY: the representative parties will fairly and adequately protect the interest of the class y Competence y Concurrent representation of the parties o If you fail in satisfying 3, you will also fail in 4because of conflicts i.e. Amchem o Differs from Rule 24  In rule 24proposed plaintiff intervenerwill they protect interest of proposed intervener? Interest in Rule 24 is more diffuse, scattered. Not really concurrent representation of parties, more so of interests  In Rule 23, more simultaneous representation, even though it is more fictitious o (b) Class Actions Maintainable: (just need to satisfy one of the 3 requirements). A class action will be maintained if Rule 23(a) is satisfied AND in addition:  (1) the prosecution of separate actions by or against individual members of the class would create the risk of[dont get to opt out of this provision] y (A) Inconsistent or varying adjudications with respect to individual class members of the class which would establish incompatible standards of conduct for the party opposing the class / when a government actor is involved; OR y (B) Adjudications for an individual member which would substantially impair or impede other members from taking action or protecting themselves (limited fund problem); OR  (2) The opposing party has acted similarly adverse to the entire class, thereby making appropriate final injunctive relief or corresponding declaratory relief (When plaintiffs do not want damages; Note: damages will muck up your 24(b)(2) class) [dont get to opt out of this provision]; OR  (3) The court finds that the question of law OR fact common to the members of the class predominate over any question affecting only individual members, AND that class action is superior to all other available methods for the fair and efficient adjudication of the controversy. (Need predomination AND superiorityprocedurally, class action is superior to joinder of parties (Rule 20) and claims and remedies (Rule 18)) Matters pertinent to findings include: [if you dont opt out, youre in] y (a) interest of members of the class in individually controlling prosecution or defense of separate actions. y (b) the extent and nature of any litigation already commenced by other class members y (c) The desirability or undesirability of concentrating the litigation of the claims in the particular forum y

o o o o

(d) Te difficulties likely to be encountered in the management of a class action y *This is disfavored by the courts in class tort actions because it may require multiple determination of acts. Also, (b)(3) requires notice its an opt out clause y Opt out in (b)(3) because the group is more likely to have due process rights affected (c) Includes an OPT OUT option for plaintiffs  (2): if you dont opt out (b3), you are in, unless you request to be out  (4): SUB-classes, and even sub issues with regard to different injuries (d) Gives federal courts lots of latitude in order to conduct actions (like 19(b)) (e) Fairness hearing, where even if you dont opt out you can object (e) Requires court approval over SETTLEMENT agreements (f) APPEALS: can get an appeal from a grant or denial of a class action certification even though it is not a final judgment using a collateral order if granted appeal by the court  If denied, you want to appeal because it affects settlement leverage  All Writs Act 1651 y

Class Action raises concurrent problems o Two levels of conflict: Individually named plaintiffs vs. desires of unnamed class members