PERSONAL JURISDICTION
D burden to object if no PJ, otherwise waivable. Always applicable: Art. IV, full faith and credit; Am. 5+14: due process
In Rem: adjudicates rights re: property in state, binding on property itself not interested parties.
1. Statutory: most states provide (condemnation, property forfeiture, etc).
Quasi-in-Rem:
Type 1: adjudicates personal interests related to in-state property
Type 2: adjudicates dispute NOT related to property but PJ over 1 party based on his having property w/in the state (enforceable to
extent of property w/in the state, not binding on party personally).
1. Statutory: long-arm
2. Constitutional: Shaffer (Greyhound stock case), applies Int’l Shoe to QIR (must do min contacts/reasonableness test) to
essentially do away with QIR (only possible if NO other forum available and D has property, e.g. some foreign Ds). Very hard to
satisfy, e.g. having rental property in state is insufficient.
See concurrences/dissent
3. Notice: Mullane applies, must effect “best practical service”
In Personam: (a) statutory basis, (b) constitutional, (c) notice
A. Statutory Basis (5)
1. Physical presence: Suffices even if presence is unrelated to claim,
--Burnham (Scalia: rejects Shaffer idea that Shoe test needs to apply to ALL PJ; it’s been a practice forever so there’s notice and it’s
not unfair).
 CONCUR (Brennan): practices can be long-standing and unfair; although there may be minimum contacts, reasonableness is
more important and does justify jurisdiction here.
--EXC: SOP by fraud/force
--EXC: immunity for nonresident parties/witnesses
2. Domicile: permanent home, presence + intention to remain
--EXC: if person lacks capacity, domicile is determined by law (e.g. infants = domiciliary of custodial parent’s home state)
3. Consent
a. Express: by K or by appointing agent for SOP (e.g. nonresident businesses as directed by state statute)
b. Implied: where state has substantial reason to regulate, may provide that by engaging in that activity nonresident appoints
agent for SOP (e.g. nonresident motorist statutes, Hess)
c. Voluntary Appearance: consent to PJ by contesting case w/o contesting PJ
EXC: “Special appearance”: objection to PJ w/o consent to jurisdiction, but doing so DOES consent to ct determination of PJ (Ins
Corp of Ireland)
4. Long-Arm Statutes (govern in diversity cases in fed ct per Rule 4k)
a. Unlimited: e.g. CA, PJ over any person/property meeting Constitutional requirements
b. Limited: most states, e.g. GA, statutes specify specific situations where PJ extends to nonresidents (e.g. tort occurring in-state)
5. Federal/Exceptions: fed ct must analyze PJ as if it were a court of the state in which it is located.
EXC: FRCP 4(k)(2): claim arises under fed law and (a) D is not subject to PJ in any state’s cts of general jurisdiction AND (b)
consistent w/Constitution. E.g. GMAC v. Raju defendant, sufficient contacts w/US if not state specifically.
EXC: FRCP 4(k)(1)(C): authorization by fed statute
EXC: FRCP 4(k)(1)(B): joined party and served w/in 100 miles of where summons issued [border issue]
B. Constitutional Basis (2)
Traditional Rule: PJ based on physical power of the state to carry out a judgment (i.e. arrest/force compliance), so PJ when D served
in forum state personally (Pennoyer)
Modern Rule: Int’l Shoe: expanded PJ beyond presence/residence/consent, OK if PJ complies with (1) minimum contacts and (2)
substantial justice/reasonableness. Kulko: applied to individuals as well as corps. (finding father whose only contact was letting his
daughter move to CA w/ mother did NOT have sufficient contacts).
1.
Minimum Contacts (3)
a. Nature: single/isolated vs. continuous/systematic
i.
General Jurisdiction: applies to any COA against the D in-state
--Perkins (Philippines co. w/ temp HQ in OH), contacts unrelated but continuous/systematic enough for PJ, vs.
--Helicopteros (purchases from state/1 CEO trip/bank acct/training), contacts NOT continuous/systematic
DISSENT: contacts were sufficient; general PJ should incl “related to” not just “giving rise to” contacts (continuum
idea)
--May also establish by consent (K, agent, etc)
ii.
Specific Jurisdiction: isolated acts = PJ only for COAs arising from that in-state activity
b. Relationship to Claim: gives rise vs. unrelated
c. Purposeful Availment: “of the privilege of conducting activities w/in the forum state, thus invoking benefits/protections of
its laws” (Denckla)
1. Contract:
--Burger King: MI franchisee PA’ed of continuing, direct relationship w/FL franchisor co BK (used training, trademark,
continued sending fees there, agreed FL law would govern (notice)).
DISSENT: (1) D did business only in MI and saw BK MI office as “embodiment” of BK, so boilerplate K language was not
sufficient notice, (2) D financially unprepared to meet added cost of FL litigation, violated fairness.
--McGee: CA had PJ over TX ins co when beneficiary was a CA resident and sent monthly premiums to TX (PA’ed b/c K had
substantial connection w/state).
2. Effects: (Note: relies on intent to target person/market (Calder), doesn’t work in negligence cases)
--Keeton: Hustler mag was carrying on “part of its business” in NH, sufficient to support PJ when very activity conducted =
COA
--Calder: CA = focal point of story and harm suffered, “effects” of FL writers’ story sufficient in CA that they could
reasonably anticipate suit there.
--Denckla: NOT PJ, even though trust beneficiary moved to FL, DE bank did not act in FL (no PA), contrast to McGee
3. Internet:
--Revell: NO PJ, contacts continuous but not substantial, doing business IN TX but not WITH TX. Using EFFECTS TEST, Ds
Columbia and Revell had no knowledge of P’s residence (intent to cause harm), sources (focal point) in TX, or
subscriptions (targeting) TX.
Schaffner suggests a REASONABLENESS analysis (e.g. Brennan concurrence to Burnham, above) might be better
standard than min contacts here
4. Stream of Commerce:
--WWV: separated ideas of min contacts/substantial justice (must meet both); as to PA, “mere likelihood” of products
ending up in state not sufficient PA (PA must be done by D, not P and then attributed to D), must be able to expect suits
there.
DISSENT: car meant to be moved, so entry of products into state is intentional and foreseeable, plus state (OK) had
substantial interest
--Gray: expectation that products will end up in state in ordinary course of commerce is sufficient PA
--Asahi: unresolved, 4 justices say PA = “directed at” forum, not just aware products might end up there (here, no PA by
part manufacturer  bike maker  CA vendor); 4 justices say PA = “awareness” that products end up in forum, so PA, but
violates substantial justice to keep suit in US when only indemnity claim of manufacturers remains (same result,
disagrees re: meaning of PA).
2.
Substantial Justice/Reasonableness (5)
a. D’s Burden: type of D, location. High bar in modern age--must be so gravely difficult/inconvenient that D is at a severe
disadvantage. Burger King: greater financial resources of P not enough vs. Asahi: type of claims remaining and foreign D were
enough.
b. Forum State Interest: location of injury, P’s presence, witness location, will their law govern, regulation of in-state activity.
McGee: state wanted redress for citizens in Ks vs. Asahi: state interest < D burden.
c. P’s Interest: convenient/effective relief, does he live there; general inclination to allow P to choose her forum.
d. Interstate Efficiency: which state has witnesses, interest, where can joinder apply; general inclination to use state resources
where most interested/efficient.
e. Shared Interests of States: substantive concerns re: social policies, federalism
If it’s reasonable on the whole, look back at contacts: should D foresee being haled into ct there based on contacts? If so, which contact(s)
made it most foreseeable?
C. Notice
1.
Constitutional:
Mullane: Due Process reqs that SOP be “reasonably calculated UTC” to provide actual notice and afford opportunity to present
objections; if “reasonable” alternative more likely to provide service, Constitution reqs [do the best you can UTC, w/in cost-benefit
analysis—ACTUAL SERVICE NOT REQ’D—how costly to do better vs. benefit to individuals?]. Here, would’ve been unduly
expensive to serve all trust beneficiaries personally, but mail would’ve been better than publishing since addresses known/parties
would’ve communicated. Publication NOT constitutional where adjudication may deprive known persons w/known whereabouts
of property.
EXC: service by publication IS ok where (a) no other way to serve (e.g. Osama) or (b) unclear interest (e.g. contingent/substitute
beneficiaries).
Insufficient: “any form substantially LESS likely to bring home notice than other feasible/customary substitutes”
1. P knows actual service failed and does not follow up (e.g. letter retuned as “unclaimed”, Flowers)
2. Publication/posting near property if D’s name/address were easily ascertainable from public records
3. Posting eviction notices on doors when process servers knew they were often removed by other kids/tenants
4. Notice mailed to D known to be mentally incompetent
5. Service on prop holder and not mortgage holder in tax foreclosure
6. Published notice to creditors settling decedent’s estate when estate knew of claim of particular creditor
7. Other than personal service if only 1 D
Sufficient:
1. Always: traditional forms of service: personal delivery, leaving papers w/responsible person at D’s residence/place of
business, delivery to appointed agent, registered mail + return receipt
2. Foreclosure notice by mail, even if owner claims not to have rec’d
3. Email, in some cts (e.g. RIO Properties, Inc.)
4. (Sometimes) mail service when multiple defendants/UTC, no bright-line rule
2.
Statutory: see FRCP 4
a. Waiver
b. Service
Nat’l Dev. Co.: (1) actual notice does NOT suffice to cure void service (although here not a problem b/c SOP was reasonable); (2) D
may have 2+ “places of abode” in modern society, options as long as “indicia of permanence” (factors incl amt $ to refurbish, listing,
actual receipt, presence—ct WITHHOLDS comment on whether it would be ok w/o presence).
Sufficient abode: hotel room, parental home of college student
Insufficient abode: penitentiary from which prisoner escaped, summer cabin in winter months
Foreign country: options: comply w/Hague Convention on service abroad, “letter rogatory”, local rules of country, personal
service if permitted in country (infrequent b/c many countries say may only be done through sovereign officials).
3.
Opportunity to be Heard:
Roller: unreasonable to require D to defend across country in 5 days
Goss: student entitled to notice of charges/opp to explain before suspension
CHALLENGING: COLLATERAL vs. DIRECT ATTACK
Baldwin: filed in state ct, removed to fed ct, dismiss for faulty SOP: granted, allowed to re-serve, dismiss for lack of PJ: denied, D did not
respond and default was granted for P (D planned to wait to challenge PJ until after judgment entered for P (collateral attack when P filed 2nd
suit to enforce judgment)). HOWEVER, no luck, because D had already challenged PJ and lost (direct attack).
Cannot do direct and collateral attack, must pick one
*Usually only makes sense to wait for collateral attack if pretty sure client IS liable and might as well save expense of challenging PJ early. If
you do think there is an argument against liability, better to bring PJ objection early, if you win, great, if not, still have viable argument on the
merits.
SUBJECT MATTER JURISDICTION
P burden to show fed SMJ by short/plain statement req’d by FRCP 8 (Randazzo), presumption vs. fed SMJ. CANNOT confer by consent, and
lack of SMJ is a defense that cannot be “waived” (can raise any time, even after judgment). In that case, P normally starts over in state ct, but
out of luck if SOL passed.
A. Constitutional Basis:
Const. Art. III, § 2 [Divvying Up SMJ]
[1] Federal: (1) cases “arising under” Constitution/US laws/treaties (federal Q), (2) affecting ambassadors, (3) admiralty/maritime, (4) cases
to which US is a party, (5) b/t 2 or more states, (6) b/t state/citizen of another state, (7) b/t citizens of diff states, (8) involving claims to land
in diff states, and (9) cases b/t a state or citizen and foreign states/foreign citizens. [Constitution only created Supreme Court and power of
legislature to create additional fed cts, legislature had to create add’l courts and juris]
[2] Supreme Court: cases involving ambassadors and where a state is a party (original jurisdiction). Otherwise, appellate juris.
[3] State: trial of crimes
B. Statutory Basis: (1) fed Q, (2) diversity/alienage, (3) not collusive, (4) domestic relations exceptions, (5) aggregation
28 USC § 1331: Federal Question: SMJ over civil actions “arising under” Constitution/US laws/treaties
1.
Well-Pleaded Complaint Rule: P must plainly state basis of SMJ in complaint; SMJ only applies when P shows it is based on US
law/Constitution, not simply b/c federal law will be raised in defense. Mottley: claim was breach of K, defense of fed statute, so no
WPC.
E.g. OK: P sues for violation of labor relations act b/c not making min. wage, D defends with facts that employee wasn’t
working enough hours
E.g. NOT OK: P sues for defamation in newspaper, D defends w/1 st Amendment
E.g. patent infringement: SMJ, patent K violation: state
*Declaratory judgments: Fed. Decl. Judg. Act provides remedy, not jurisdictional basis, for declaratory judgment claim; DJ ok in
fed ct if either party could bring a COERCIVE action raising same issues with SMJ
2.
Centrality of Fed Issue to Dispute: Grable (claim: quiet title action alleging failure to serve properly when IRS seized property for
delinquency, issue of interpreting fed tax statute notice provision) vs. Merrell Dow (state tort law claim for negligent mislabeling of
drugs under FDCA, which did not provide for private COA). Suggests balancing fed forum interest v. consistency w/leg intent of
caseload division.
a. State claim necessarily raises fed issue
*Grable: basis of claim was whether statute was proper; MD: multiple grounds for demonstrating negligence, not just statute.
b. Fed issue disputed and substantial
*Grable: clearly disputed and ability to collect taxes a substantial fed interest; MD: labeling issues important but not as much as
taxes (look for fundamental govt interest, COA in statute, etc).
c. Fed forum can entertain w/o disturbing congressionally-delineated state/fed judicial responsibilities
*Grable: negligible change to fed caseload vs. Merrell Dow: huge increase in tort claims in fed ct.
28 USC § 1332 Diversity of Citizenship; Amt in Controversy; Costs:
(a) Exceeds $75k (see aggregation below)
*”Good faith” standard, based on “equitable relief” (see below), low bar—ct RARELY rules it couldn’t be met as a matter of law (e.g.
airline embarrassment suit (facts) or statutory cap (Buffalo Creek)) and only addresses if D or pleadings raise issue, in which case P
burden to prove not clear to “legal certainty” that amt couldn’t be met) AND
1. Citz of diff states
*Rationale: neutral forum, protect commercial interests investing in other states. Some say no longer needed (reduced bias,
mobile society), others say still essential, Pennzoil
a. Complete diversity req: Strawbridge, presence of parties from same forum on both sides dispels concern of local bias,
Allapattah Servs.
E.g.: WWV, Ps wanted to add the NY cos to eliminate diversity/prevent removal to fed ct
EXC: Fed. Interpleader Act, min diversity ok where specific action re: prop
b. Citizenship = domicile at TIME OF FILING (Mas), can move after and not affect
*Change of Domicile = physical move + intention to remain (Mas). Intent can be hard to determine, look to voter reg,
house, tax payment, in-state tuition, etc (highly fact-based inquiry).
*US Citizen Domiciled Abroad: must be sued in state ct if SMJ based on diversity (not foreign subject and no state
citizenship)
*Alien admitted for permanent residence is considered cit of state of domicile (language added later, may have
complicated Mas), SPLIT on whether diversity if suing another alien (3rd Cir) or no (7th)
*Dual Citizenship: most cts don’t allow duality to create diversity if it wouldn’t otherwise exist, need to be diverse from
both/all citizenships
*Legal Reps of estates/infants/incompetents deemed citz of states of dec/inf/incomp.
2. Involving foreign subjects
*Rationale: forum free from political influence; show importance by ascribing to national docket
3. Citz diff states + foreign states as add’l parties
4. Foreign state as P
(b) Costs if P recovery < $75k (ct discretion)
(c) Corporations = residents of:
1. States of incorporation AND
2. Principal place of business: “nerve center,” usually HQ (unless mailbox/empty office, look to where direction comes from), not
muscle center (Hertz). Supported by stat language, efficiency, leg history, but may lead to some weird results (e.g.
telecommuting officers, doing majority of business elsewhere).
EXC ins co = citizen of state in which insured is a citizen
EXC if co joined as party-D, above in addition to its own state of
incorporation/place of business.
Partnerships: (not taxed, joint/several liability of officers) considered citizens of ALL states in which its members are citz
(applies to all ltd/general partners)
LLCs: (characteristics of cos/parterships), follow PARTNERSHIP rule on citizenship (Belleville)
(d) Class Actions (see stat, long rules)
(e) “States” include DC, Puerto Rico, and territories for purposes of diversity
C. Collusion
28 USC § 1359: Parties Collusively Joined or Made: dist ct shall not have juris if any party, by assignment or otherwise, has been
improperly/collusively made/joined to invoke the juris of that court.
EXC: absolute assignment of claim, assignor retains no interest in assigned claim
D. Domestic Relations Exceptions: idea that state cts have greater expertise/proximity; doesn’t preclude OTHER suits against family
members. May get complicated, e.g. won’t hear divorce-related tort proceedings but will hear cases involving misadministration of estates
(Anna Nicole). Applies to divorce, alimony, child custody, probate.
E. Aggregation (to meet amt in controversy):
1.
2.
1 P vs. 1 D: CAN aggregate claims even if legally/transactionally unrelated
2+ Ps or 2+ Ds: CANNOT aggregate even if transactionally related.
*Class actions: weirdly, though citizenship only determined by that of class rep, amt in controversy must be satisfied by EACH
claim.
EXC: cases involve “common/undivided/joint” claim, aggregation IS ok (when idea is that it’s not really aggregation but 1 claim
w/jointly liable Ds, either of whom could be responsible for full judgment). E.g. joint liability (2+ tortfeasors but 1 claim)
EXC: personal injuries: multiple P claims can’t be aggregated even if from same accident
*HOW MET: EQUITABLE RELIEF: most cts allow monetization by harm to P (traditional) OR cost to D in complying w/injunction
(newer).
REMOVAL
*To remove, case must be one over which fed ct already has SMJ (D burden to prove P’s claim invokes SMJ).
*D does not ask, just removes (mails notice w/grounds to state ct and other party(ies)); ct can remand if improper.
*Can ONLY remove to dist ct of state/division where claim is filed within 30 days of actual SOP/event conferring SMJ (Caterpillar, settlement
w/nondiverse party).
*If D impleads another non-diverse party after filing, doesn’t make diversity incomplete. *Caterpillar: if jurisdictional defect remains at time
of judgment, must be vacated; but if jurisdictional issue resolved by time of judgment, remanding would be too costly/inefficient.
28 U.S.C. § 1441 Actions Removable Generally
(a) If fed SMJ, removable by any D to dist “embracing” state division where filed.
(b) If fed Q (arising under Const/treaties/US laws), removable w/o regard to citizenship of parties. If diversity, removable only if no D is a
citizen in state where brought.
(c) If supp juris, ct discretion to determine all claims together vs. remand otherwise nonremovable (supp) claims
(d) Any action brought against a foreign state removable to dist ct of the state where filed (tried by ct w/o jury. Time limitations of 1446(b)
may be enlarged for cause shown).
(e) D can remove in multiparty, multiforum actions, 75+ deaths (see rule, long)
(f) Fed cts to which cases are removed NOT precluded from hearing/deciding the case just b/c the state ct from which it was removed did
not have proper juris.
28 USC § 1446(a, b, d) Procedure for Removal
(a) D must file w/dist ct a notice of removal (pursuant to FRCP 11) containing a short, plain statement of grounds for removal along
with a copy of all process, pleadings, and orders served upon D in the action.
(b) Removal notice shall be filed w/in 30 days of D’s receipt, through service or otherwise, a copy of the original pleading (complaint)
OR w/in 30 days after service of summons if initial pleading has been filed in ct and is not required to be served on D, WHICHEVER
IS SHORTER.
If case is not originally removable, notice of removal may be filed w/in 30 days of D’s receipt, through service or otherwise, of a
copy of an amended pleading/mot/order/other paper from which D ascertained case is now removable (gets diversity), BUT must
be w/in 1 year of start of action (Caterpillar)
(d) “Promptly” after filing removal notice D must give written notice thereof to adverse parties and file notice w/clerk of state ct, which
effects the removal and state ct proceeds no further unless remanded.
28 U.S.C. 1447 Procedure After Removal
(a) Dist ct may issue all necessary orders/process to bring before it all proper parties whether served by process issued by state ct or
otherwise
(b) Dist ct may require removing party to file w/its clerk copies of all records/proceedings or get same from state ct by writ of
certiorari
(c) Mot to remand case on basis of any defect other than lack of SMJ must be made w/in 30 days after filing of removal notice. If before
final judgment it appears dist ct lacks SMJ, case is remanded. Order remanding case may require costs/expenses/fees incurred due
to removal. Certified copy of the order of remand shall be mailed by clerk to the clerk of the State ct which may thereupon proceed
with the case.
(d) Order remanding to state ct not reviewable on appeal or otherwise unless pursuant to §1443 (civil rights cases).
(e) If after removal P seeks to join additional Ds whose joinder would destroy SMJ, ct may deny joinder or permit joinder and remand
action to state ct.
28 U.S.C. § 1448 Process After Removal
If D(s) in any removed case have NOT YET been properly served, such process or service may be completed or new process issued in the
same manner as cases originally filed in the dist ct. No D served after removal will be denied his right to move to remand the case.
FRCP 81: Applicability of Rules; Removed Actions
(c) Removed Actions:
(1) FRCP apply once action is removed from state ct
(2) After removal, re-pleading unnecessary UNLESS ct orders it. D who did NOT answer before removal must answer/present
defenses/objections within the LONGEST of:
(a) 21 days after receiving (thru SOP or otherwise) a copy of the initial pleading,
(b) 21 days after being served w/summons for an initial pleading on file at time of service, or
(c) 7 days after notice of removal is filed.
(3) Demand for Jury Trial: don’t usually need to renew, see rule
VENUE
*Local actions (related to land: in rem/QIR, remedy in or to realty, claims for damages to land) = venue laid where land located usually
*All actions that are not “local actions” are “transitory actions”
*State venue provisions = general and special rules as to division, MD code is typical (p. 240-43)
*Venue proper if meeting §1391, regardless of specific venue provision statutes
*Venue “substantial part of events” distinguishable from “contacts” (e.g. Magic Toyota, SC venue improper b/c fraudulent inducement to
purchase SC dealership happened during FL negotiations and other activities supporting fraudulent scheme occurred outside SC).
*If claims joined, must still est. venue for ALL (not hard, usually Ds reside together or events happened in same place)
A.
Constitutional: no constitutional provision, just need to meet PJ
B.
Statute:
28 U.S.C. § 1391: Venue (irrelevant to removed cases, see 1441(a))
(a) DIVERSITY cases only where:
(1) district where any D resides (= domicile), if all Ds reside in the same State,
(2) district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated (Bates, venue proper where forwarded collections ltr was received in claim of violating
Fair Debt Collection Practices Act), or
(3) [fall-back] a judicial district in which any D is subject to PJ at the time the action is commenced, IF there is no district in which
the action may otherwise be brought.
(b) If NOT ONLY DIVERSITY, can be brought where:
(1) district where any D resides (= domicile), if all Ds reside in the same State,
(2) district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated, or
(3) [fall-back] a judicial district in which any D may be found, if there is no district in which the action may otherwise be brought.
(c) Corporation D [Cts apply to LLCs/partnerships also] deemed to reside in any judicial district in which it is subject to PJ at the time the
action is commenced. In a State which has 2+ judicial districts and in which a D that is a corporation is subject to PJ at the time an action is
commenced, such *corporation shall be deemed to reside in ANY district in that State within which its contacts would be SUFFICIENT to
subject it to PJ if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district
within which it has the MOST significant contacts.
(d) An alien may be sued in any district.
(e) A civil action in which a D is an officer or employee of the United States
(f) A civil action against a foreign state
C.
Change of Venue: if filing venue was improper/D unlikely to get fair trial.
1.
States: can transfer w/in state divisions but not to other state (can dismiss under FNC and P can re-file in another state).
2.
Federal: 2 statutes govern: 1404 (transferor ct is PROPER), 1406 (transferor ct is IMPROPER, Goldlawr: ct has power to
transfer even if lacking PJ/venue for efficiency purposes)
§ 1404 Change of Venue [Proper Ct] Q #1: is there an alternative forum? If so:
(a) For the convenience of parties AND witnesses, in the interest of justice, a district court may transfer any civil action to any other dist/div
where it might have been brought.
*FORUM NON CONVENIENS: CL ct-created doctrine allowing DISCRETIONARY dismissal/transfer
Weighs PRIVATE FACTORS (citizenship of Ps, witnesses/evidence, whether joinder/impleading would be involved) vs.
PUBLIC FACTORS (law to be applied, esp. if multiple sets and if ct is unfamiliar, foreign interest, citizens’ interest, e.g. jury, judicial
resources, etc).
Piper: less favorable law does NOT bar dismissal, must weigh factors
(b) Upon motion, consent or stipulation of all parties, any civil proceeding may be transferred, in the CT DISCRETION, from the division in
which pending to any other division in the same district.
(c) A district court may order any civil action to be tried at any place within the division in which it is pending.
(d) “Dist” incl DC, Guam, etc.
*Multidistrict litigation: §1407 permits consolidation of mass tort cases for pretrial proceedings, then cases are supposed to be remanded to
dist cts from which they came for the trials, but often cts allow trials to proceed for efficiency’s sake
 Continue applying law of TRANSFEROR ct (Klaxon), even if P requests transfer (Ferens)—e.g. Piper
§ 1406 Cure or Waiver of Defects [Improper Ct]
(a) WRONG div/dist = CT DISCRETION to dismiss or, if it be in the interest of justice, transfer such case to any district/div in which it could
have been brought.
(b) Ct can adjudicate if party doesn’t interpose timely and sufficient objection to the venue.
(c) “Dist” incl DC, Guam, etc.
 Apply law of TRANSFEREE (proper) ct
FRCP 4: SUMMONS
(a) Contents; Amendments.
(1) Contents. A summons must:
(A) name the court and the parties;
(B) be directed to the D;
(C) state the name and address of the P’s attorney or — if unrepresented — of the P;
(D) state the time within which the D must appear and defend;
(E) notify the D that a failure to appear and defend will result in a default judgment against the D for the relief demanded in the
complaint;
(F) be signed by the clerk; and
(G) bear the court’s seal.
(2) Amendments.
The court may permit a summons to be amended.
(b) Issuance.
On or after filing the complaint, the P may present a summons to the clerk for signature and seal. If the summons is properly completed,
the clerk MUST sign, seal, and issue it to the P for service on the D. A summons — or a copy of a summons that is addressed to multiple
Ds — must be issued for each D to be served.
(c) Service.
(1) In General.
A summons must be served w/ a copy of the complaint. The P is responsible for having the summons/complaint served w/in the time
allowed by Rule 4(m) [120 days unless good cause shown) and must furnish the necessary copies to the person who makes service.
(2) By Whom.
Any person who is at least 18+ and NOT a party may serve a summons and complaint.
(3) By a Marshal or Someone Specially Appointed.
At the P’s request, the court may order that service be made by a US marshal or deputy marshal or by a person specially appointed by
the court. The court must so order if the P is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28
U.S.C. § 1916.
(d) Waiving Service.
(1) Requesting a Waiver.
An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary
expenses of serving the summons. The P may notify such a D that an action has been commenced and request that the D waive service
of a summons. The notice and request must:
(A) be in writing and be addressed:
(i) to the individual D; or
(ii) for a D subject to service under Rule 4(h) [corp/partnership/assoc], to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to
receive service of process;
(B) name the court where the complaint was filed;
(C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form;
(D) inform the D, using text prescribed in Form 5, of the consequences of waiving and not waiving service;
(E) state the date when the request is sent;
(F) give the D a reasonable time of at least 30 days after the request was sent — or at least 60 days if sent to the D outside any
judicial district of the US — to return the waiver; and
(G) be sent by 1st class mail or “other reliable means.”
(2) Failure to Waive.
If a D located within the US fails, w/o good cause, to sign and return a waiver requested by a P located within the US, the court must
impose on the D:
(A) the expenses later incurred in making service; and
(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.
(3) Time to Answer After a Waiver [INCENTIVE]
A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days
after the request was sent — or until 90 days after it was sent to the defendant outside any judicial district of the US.
(4) Results of Filing a Waiver.
When the P files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the
time of filing the waiver.
(5) Jurisdiction and Venue NOT WAIVED.
Waiving service of a summons does not waive any objection to PJ/venue.
(e) Serving an Individual Within a Judicial District of the US.
Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been
filed — may be served in a judicial district of the US by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district
court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of “suitable age and discretion who
resides there”; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
(f) Serving an Individual in a Foreign Country.
Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been
filed - may be served at a place not within any judicial district of the US:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague
Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method
that is reasonably calculated to give notice:
(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country's law, by:
(i) delivering a copy of the summons and of the complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.
(g) Serving a Minor or an Incompetent Person.
A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons
or like process on
such a D in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an
incompetent person who is NOT
within any judicial district of the United States must be served in the manner prescribed by Rule
4(f)(2)(A), (f)(2)(B), or (f)(3).
(h) Serving a Corporation, Partnership, or Association.Unless federal law provides otherwise or the D’s waiver has been filed, a
domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name,
must be served:
(1) IN a judicial district of the US:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of process and — if the agent is one authorized by statute and the statute
so requires — by ALSO mailing a copy of each to the defendant; or
(2) at a place NOT within any judicial district of the US, in any manner prescribed by Rule 4(f) for serving an individual, except
personal delivery under (f)(2)(C)(i).
(i) Serving the US and Its Agencies, Corporations, Officers, or Employees.(see rule, long)
(j) Serving a Foreign, State, or Local Government.(see rule, long)
(k) Territorial Limits of Effective Service.
(1) In General.
Serving a summons or filing a waiver of service establishes PJ over a D:
(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;
(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100
miles from where the summons was issued; or
(C) when authorized by a federal statute.
(2) Federal Claim Outside State-Court Jurisdiction.
For a claim that arises under federal law, serving a summons or filing a waiver of service establishes PJ over a D if:
(A) the D is not subject to jurisdiction in any state’s courts of general jurisdiction; and
(B) exercising jurisdiction is consistent with the US Constitution and laws.
(l) Proving Service.
(1) Affidavit Required.
Unless service is waived, proof of service must be made to the court. Except for service by a US marshal or deputy marshal, proof
must be by the server’s affidavit.
(2) Service Outside the US.
Service not within any judicial district of the US must be proved as follows:
(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or
(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the
summons and complaint were delivered to the addressee.
(3) Validity of Service; Amending Proof.
Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.
(m) Time Limit for Service.
If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the P —
MUST dismiss the action without prejudice against that D or order that service be made within a specified time.
EXC: if the P shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m)
does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).
(n) Asserting Jurisdiction over Property or Assets.
(1) Federal Law.
The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as
provided in the statute or by serving a summons under this rule.
(2) State Law.
On a showing that PJ over a D CANNOT be obtained in the district where the action is brought by reasonable efforts to serve a
summons under this rule, the court may assert jurisdiction over the D’s assets found in the district. Jurisdiction is acquired by seizing
the assets
under the circumstances and in the manner provided by state law in that district.
FRCP 12: DEFENSES AND OBJECTIONS
(a) Time to Serve a Responsive Pleading.
(1) In General.
Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after
it was sent to the defendant outside any judicial district of the United States.
(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states
the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a
different time.
(2 US, Official Capacity (see rule)
(3) US, individual capacity (see rule)
(4) Effect of a MOTION.
Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days
after notice of the court’s action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the
more definite statement is served.
(b) How to Present Defenses.
Every defense to a claim for relief in any pleading MUST be asserted in the responsive pleading if one is REQ’D. But a party MAY assert
the following defenses by MOTION:
(1) lack of SMJ;
(2) lack of PJ [2-5 subject to 12h, waivable if not brought in mot/resp. pleading (12(h)) and not at the same time (12(g))]
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted (legal/factual grounds); [1, 6-7, much more leeway in time to raise,
12(h)(2)]
(7) failure to join a party under Rule 19 [compulsory]
A motion asserting any of these defenses must be made BEFORE pleading if a responsive pleading is allowed. If a pleading sets out a
claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or
objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.
(c) Motion for Judgment on the Pleadings.
After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.
(d) Result of Presenting Matters Outside the Pleadings (MSJ)
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion
must be treated as one for MSJ under Rule 56. All parties must be given a reasonable opportunity to present all the material that is
pertinent to the motion.
(e) Motion For a More Definite Statement.
A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or
ambiguous that the party cannot reasonably prepare a response. The motion MUST be made before filing a responsive pleading and
must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not
obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other
appropriate order.
(f) Motion To Strike.
The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court
may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being
served with the pleading.
(g) Joining Motions.
(1) Right to Join.
A motion under this rule may be joined with any other motion allowed by this rule.
(2) LIMITATION on Further Motions.
Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule [RULE 12] must NOT make another motion
under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
(h) Waiving and Preserving Certain Defenses.
(1) When Some Are Waived.
A party waives any defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
(2) When to Raise Others.
Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim
may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of SMJ.
If the court determines at ANY time that it lacks SMJ, the court MUST dismiss the action.
(i) Hearing Before Trial.
If a party so moves, any defense listed in Rule 12(b)(1)-(7) — whether made in a pleading or by motion — and a motion under Rule
12(c) MUST be heard and decided BEFORE trial (unless the court orders a deferral until trial).
FRCP 7: Type of Pleadings Allowed
(a) Pleadings.
Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a 3rd-party complaint;
(6) an answer to a 3rd-party complaint; and
(7) if the court orders one, a reply to an answer.
(b) Motions and Other Papers
(1) In General.
A request for a court order must be made by motion. The motion must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought.
(2) Form: The rules governing captions and other matters of form in pleadings apply to motions and other papers.
FRCP 8: General Rules of Pleadings
(a) Claims for Relief.
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; (vs. code states, e.g. CA, NY: “statement of
facts constituting cause of action,” requires more detail in pleadings)
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief. (May be dollar figure or “amt
to be shown at trial,” doesn’t limit actual relief—P may get more at trial).
(b) Defenses; Admissions and Denials.
(1) In General.
In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party.
(2) Denials — Responding to the Substance.
A denial must fairly respond to the substance of the allegation.
*Do NOT plead contrary facts (e.g. D was in another place at the time); may be deemed “argumentative denial” and run risk of being
deemed admission in code states. Also avoid “negative pregnant”—too literal, “pregnant” with suggestion that act might have been
done at some other place/time (e.g. “D denies that she negligently drove over P on Main Street on Feb 5 th“).
(3) General and Specific Denials.
A party that intends in good faith to deny ALL the allegations of a pleading — including the jurisdictional grounds — may do so by a
general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or
generally deny all except those specifically admitted.
(4) Denying Part of an Allegation.
A party that intends in good faith to deny only part of an allegation must ADMIT the part that is true and deny the rest.
(5) Lacking Knowledge or Information.
A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the
statement has the effect of a denial.
(6) Effect of Failing to Deny.
An allegation — other than one relating to the amount of damages — is ADMITTED if a responsive pleading is required and the
allegation is not denied. If a
responsive pleading is not required, an allegation is considered DENIED or avoided.
(c) Affirmative Defenses.
(1) In General.
In responding to a pleading, a party MUST affirmatively state any avoidance or affirmative defense, including:
accord and satisfaction;
arbitration and award;
assumption of risk;
contributory negligence;
discharge in bankruptcy;
duress;
estoppel;
failure of consideration;
fraud;
illegality;
injury by fellow servant;
laches;
license;
payment;
release;
res judicata;
statute of frauds;
statute of limitations; and
waiver.
(2) Mistaken Designation.
If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat
the pleading as though it were correctly designated, and may impose terms for doing so.
(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.
(1) In General.
Each allegation must be simple, concise, and direct. No technical form is required.
(2) Alternative Statements of a Claim or Defense.
A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in
separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.
(3) Inconsistent Claims or Defenses.
A party may state as many separate claims or defenses as it has, regardless of consistency (McCormick)
(e) Construing Pleadings.
Pleadings must be construed “so as to do justice.”
FRCP 10 Form of Pleadings:
(a): Must contain name of ct, title of case (naming all parties), identity of doc, file number. Titles of other pleadings, after naming first party
on each side, can refer generally to other parties.
(b): A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A
later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a
separate transaction or occurrence — and each defense other than a denial — must be stated in a separate count or defense.
[In practice Ps often state counts for diff claims even if related (e.g. car accident: count of personal injuries/count for car damage)]
(c): May attach written instrument (incorporates) and adopt allegations of diff counts by reference.
THE COMPLAINT
A.
Rule 8(a) Requirements (see rule):
(a) grounds for jurisdiction
(b) short/plain statement of claim showing pleader is entitled to relief
(c) demand for relief
B.
Legal Sufficiency: must allege each ELEMENT of a claim (e.g. loss of consortium = must be spouse/neg elements, p. 290)
*If insufficient, D may file demurrer (or, in fed ct, 12(b)(6) MTD for failure to state a claim; may demur to some/all claims.
*Ct may dismiss w/o prejudice to allow P to amend or w/prejudice if it is clear P cannot establish claim.
*12(b)(6)/demurrer only address sufficiency of allegations (not evidence). If either party believes there’s no factual dispute, he
can file MSJ (lets ct look to evid to see if there’s a factual dispute).
*If dismissed, for “substantive inadequacy”
C.
Factual Sufficiency: 8(a)(2): short/plain statement showing entitlement to relief
*If insufficient, D can file 12(b)(6) MTD (dismiss w/ or w/o prejudice) or, in code states, “special demurrer.”
*If dismissed, for “inadequate notice”
a. Code states: statement of facts constituting cause of action citing “ultimate facts” (confusing term—too general: “pleading
conclusions of law”, too specific: “pleading the evidence,” either may sustain D’s special demurrer). Practice has generally
relaxed but sometimes still tough on pleaders alleging conclusions of law. D can also move for more definite statement/bill of
particulars.
b. Fed Rules: avoids “facts” altogether, *“notice pleading”: D must have notice of (1) legal elements of claim and (2) facts
establishing those legal elements. Rationale: let P get to discovery.
1.
Old Standard: Conley, complaint should NOT be dismissed unless BEYOND DOUBT that P can prove “no set of facts”
supporting claim that “gives fair notice” of complaint/grounds of what claim is (“notice pleading”). Assume all factual
allegations are true, read in light most favorable to P.
2.
New Standard: Twombly, complaint MAY be dismissed if no showing of facts such that claim is plausible, not possible.
Assume factual allegations are true but not “legal conclusions” (e.g. agreement in Twombly, need some evidence of
call/correspondence/etc) (but see dissent, reiterates Conley, dismissal only appropriate when beyond doubt that no set of
facts supports claim).
*Represents step back from “notice pleading” system; rationale: protect D from high-expense discovery (fairness), more
efficient in weeding out claims. MAY be less accurate/predictable from P’s perspective.
*UNCERTAIN APPLICATION! Most cts quickly applied Twombly outside antitrust cases. Iqbal: says Twombly is applicable
to all civil cases, limiting discovery irrelevant to MTD, ct doesn’t have to accept conclusory statements w/o factual context
(but see dissent)…
*BUT, tend to have lower reqs in civil rights/prisoner cases, e.g. Erickson (prisoner w/Hep C removed from treatment),
“specific facts not necessary, statement need only give fair notice of claim/grounds”
EXC: LESS specificity: common counts w/o facts statement permitted in code/fed rule states for certain claims
(money had/rec’d, labor done, goods delivered, money owed)
EXC: MORE specificity: FRCP 9(b), Fraud/Mistake: party must state w/particularity the circumstances
constituting fraud/mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged
generally. Leatherman: heightened reqs limited to fraud/mistake cases
D.
Pleading Inconsistent Facts/Alternative Theories: (McCormick) Even if counts are inconsistent and P may not recover on all
counts, P allowed to plead together (in the alternative) and join Ds when genuinely in doubt about which set of facts is true (not
grounds for dismissal that they contradict).
*Esp. appropriate in cases of decedent Ps
*Alternative: 2 separate cases, more advantageous to P
FRCP 41: Voluntary (41a)/Involuntary (41b) DISMISSAL
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order: P may dismiss an action w/o a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment [evid
introduced]; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is w/o prejudice. BUT if the plaintiff previously dismissed
any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the
merits. Note: if bringing 2nd action in state ct, Rule 41 doesn’t apply.
(2) By Court Order; Effect.
Except as provided in Rule 41(a)(1), an action may be dismissed at the P’s request only by court order, on terms that the court
considers proper. If a D has pleaded a counterclaim before being served with the P’s motion to dismiss, the action may be dismissed
over the D’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a
dismissal under this paragraph (2) is w/o prejudice.
(b) Involuntary Dismissal (by D/ct); Effect.
If the P fails to prosecute or to comply with these rules or a court order, a D may move to dismiss the action or any claim against it. Unless
the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule — except one for lack
of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.
*Note: SC has upheld dist judges’ rights to dismiss involuntarily sua sponte (Link, as for dilatory atty behavior)
(c) Dismissing a Counterclaim, Crossclaim, or 3rd-Party Claim.
This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant's voluntary dismissal under Rule
41(a)(1)(A)(i) must be made:
(1) before a responsive pleading is served; or
(2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.
(d) Costs of a Previously Dismissed Action.
If a P who previously dismissed an action in any court files an action based on or including the same claim against the same D, the court
may order P to (1) pay costs of previous action or (2) stay proceedings until P complies.
FRCP 15: Amended/Supplemental Pleadings (“liberal”, cts prefer to decide on merits).
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading ONCE as a matter of course within:
(A) 21 days after serving it, OR
(B) if the pleading is one to which a RESPONSIVE pleading is required, 21 days after service of a responsive pleading or 21 days
after service of a motion under Rule 12(b), (e), or (f), whichever is EARLIER.
(2) Other Amendments.
In all other cases, a party may amend its pleading ONLY with the opposing party's written consent or the court's leave. The court
should freely give leave when justice so requires *Fairly liberal standard, cts prefer to decide on merits (Aquaslide). Case-by-case
inquiry, e.g. may NOT be given if undue delay, lack of reasonable inquiry by party in first place, bad faith, dilatory, undue prejudice,
problems not cured, etc, no time limit but the longer one waits more likely other side will claim prejudice).
(3) Time to Respond.
Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to
respond to the original pleading or within 14 days after service of the amended pleading, whichever is LATER.
(b) Amendments During and After Trial (“Variance”)—older code juris could be very harsh and held failure to prove what was
pleaded was fatal
(1) Based on an Objection at Trial.
If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be
amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails
to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance
to enable the objecting party to meet the evidence.
(2) For Issues Tried by Consent.
When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if
raised in the pleadings. A party may move — at any time, even after judgment — to amend the pleadings to conform them to the
evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue. (*Allows D to
overcome general rule that affirmative defenses not raised are waived)
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:
(A) the law that provides the applicable SOL allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to
be set out — in the original pleading (NOT Marsh); or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; AND
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper
party's identity.
(2) Notice to the United States. See rule
(d) Supplemental Pleadings.
On motion and reasonable notice, the court MAY, on just terms, permit a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened AFTER the date of the pleading to be supplemented. The court may permit supplementation even
though the original pleading is defective in stating a claim or defense. The court MAY order that the opposing party plead to the
supplemental pleading within a specified time.
DEFENDANTS’ OPTIONS
1.
Respond w/MOTION (12(b)(6)-insufficiency of law/fact, MSJ, 12(e)-more definite statement, 12(f)-move to strike, may incl
striking claim for relief not allowed by law, e.g. some punitive damages)
2.
Respond w/ANSWER: (1) respond to allegations—admit, deny, lack of knowledge and (2) raise new matter, incl defenses. Rule
8(d): if not denied, admitted. If denied, allegations are joined, so ripe for adjudication. If admitted, taken as true/no evidentiary
determination needed.
a.
Responding to Allegations:
i. Admissions
ii. Denials: general (rare, denies all claims) or specific (e.g. by paragraph). Rule 8(b) governs, must avoid “argumentative
denial” and “negative pregnant” (hypertechnical, most fed cts still treat as denials but some state cts less forgiving).
*McCormack: may plead multiple theories, e.g. deny a battery AND in the alternative raise aff. defense of self-defense
iii. Lack of knowledge/info (functions as denial): must comply w/Rule 11 (good faith/veracity, no dice if D has reasonable
access to info/public info).
b.
Affirmative Defenses: Rule 8(c)(1) lists--not exhaustive (can find something analogous to a listed one), D has burden of
pleading/proof for defenses. If D fails to plead defense, may be *waived unless ct allows amendment.
*CF Pleading burden: depending on language of statute, may be D’s burden to prove contributory neg as aff. defense (“claim
provided that/if/unless no liability if P primary cause of injury”) or P’s burden to prove not CN (“person who is herself not neg
has claim”). Policy choice, who’s in better position to have/produce evidence, positive/negative burdens, etc.
SOL: affirmative defense, some juris: must be pleaded in D’s answer or precluded, other juris may grant MSJ for D if raised
later
Reply by P to affirmative defenses (Rule 7) may be ordered in some states
3.
Respond w/D’s CLAIMS: counterclaim or cross-claim
4.
No Response: Default (administrative note that D failed to respond) and Default Judgment (P can pursue if D doesn’t respond in
time). Can be in default after appearing specially if D still fails to answer after motion is denied. P has no absolute right to default
judgment (Ct’s discretion, usually consider sum at stake, bad faith, weak assertions on the merits).
If late, D should file motion for “enlargement” of time, but some cts still let D respond anytime before clerk enters default. If
default entered, Rule 60(b) allows motion to set aside judgment for “excusable neglect” (lawyer inability to communicate w/D or
lawyer negligence/slowness doesn’t usually suffice, unless egregious, sometimes emotional distraction/psychiatric care/lack of
manipulation of proceedings might).
VERACITY IN PLEADINGS: Rule 11 and Other Devices: Discretionary option at any time: Rule 11 sanctions possible even when: (1) P
already voluntarily dismissed suit (Cooter & Gell), (2) where ct later found to lack SMJ (Willy)
Also: Model Rules of Professional Conduct (p. 345-46)
FRCP 11: Pleadings/Motions/Other Papers; Representations to the Court; Sanctions [do not have to impose sanctions, discretionary,
don’t go to other party but go to court exc atty fees—less incentive for parties to move for sanctions]
(a) Signature.
Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name — or by a
party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless
a rule or statute specifically states otherwise, a pleading need NOT be verified or accompanied by an affidavit. The court MUST strike an
unsigned paper UNLESS corrected promptly when called to attention.
(b) Representations to the Court.
By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it —
an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances [*may be able to show not unreasonable—mistake in developing area of law, etc]:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of
litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for changing law;
(Bridges, not yet warranted b/c of admin remedies)[11c5—can only sanction ATTORNEY, unless pro se]
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a
lack of information.
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the
court MAY impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.
Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate,
or employee. (Bridges, discretionary, may not impose if ct feels sufficiently addressed already)
(2) Motion for Sanctions. [incl safe harbor] A motion for sanctions must be made separately from any other motion and must
describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5 [governs service of papers
after initial filing], but it must NOT be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is
withdrawn or appropriately corrected within 21 days after service [Rector, safe harbor IS waivable/not jurisdictional, if party
doesn’t assert 21 day privilege it may not be followed (dissent: inaction by party doesn’t justify)] or within another time the court
sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the
motion.
(3) On the Court's Initiative [show cause] On its own, the court may order an attorney, law firm, or party to SHOW CAUSE why
conduct specifically described in the order has NOT violated Rule 11(b).
(4) Nature of a Sanction. A sanction imposed under this rule must be LIMITED to what suffices to deter repetition of the conduct
or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty
into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of
the reasonable attorney's fees and other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions: court must NOT impose a monetary sanction against (1) a represented party for violating
Rule 11(b)(2) unless pro se, OR (2) on its own, UNLESS it issued the show-cause order under 11(c)(3) before voluntary
dismissal/settlement.
(6) Requirements for an Order: it must describe the sanctioned conduct and explain the basis for the sanction.
(d) Inapplicability to Discovery (self explanatory), (applies to pleadings)
FRCP 18: Joinder of Claims
(a) In General.
A party asserting a claim, counterclaim, crossclaim, or 3rd-party claim may join, as independent or alternative claims, as many claims as
it has against an opposing party.
(b) Joinder of Contingent Claims.
A party may join 2 claims even though 1 of them is contingent on the disposition of the other; but the court may grant relief only in
accordance with the parties' relative substantive rights. In particular, a P may state a claim for money and a claim to set aside a
conveyance that is fraudulent as to that P, without first obtaining a judgment for the money.
FRCP 20: PERMISSIVE Joinder of Parties (“proper parties”, those who “may” (not “must”) be joined), permissive, P exercises at own
discretion (may choose NOT to join all possible parties b/c can’t get PJ over all, would destroy diversity if relevant, or litigation strategy—not
wanting other Ps involved)
(a) Persons Who May Join or Be Joined.
(1) Plaintiffs.
Persons may join in one action as Ps if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all Ps will arise in the action.
(2) Defendants.
Persons — as well as a vessel, cargo, or other property subject to admiralty process in rem — may be joined in one action as Ds if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all Ds will arise in the action.
(3) Extent of Relief.
Neither a P nor a D need be interested in obtaining or defending against ALL the relief demanded. The court may grant judgment to 1
or more Ps according to their rights, and against 1 or more Ds according to their liabilities.
(b) Protective Measures.
The court may issue orders — including an order for separate trials — to protect a party against embarrassment, delay, expense, or other
prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.
FRCP 21: Misjoinder and Non-Joinder of Parties
Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop
a party. The court may also sever any claim against a party [creates separate cases, not separate trials of issues w/in same case]
FRCP 42(b) Consolidation/Separate Trials
(a) Consolidation: If actions involve common Qs of law/fact, ct MAY (e.g. joining passenger Adelia in Schwartz):
1. join for hearing/trial matters at issue in the actions,
2. consolidate the actions
3. issue any other orders to avoid unnecessary cost/delay.
(b) Separate Trials: For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or
more separate issues, claims, crossclaims, counterclaims, or 3rd party claims. When ordering a separate trial, the court must preserve
any federal right to a jury trial.
FRCP 13: COUNTERCLAIM AND CROSSCLAIM
(a) COMPULSORY Counterclaim.
(1) In General.
A pleading MUST state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the
claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.
May allow continued litigation if D failed to raise compulsory XC (Dindo, treats Rule 13 as estoppel/equitable) esp. if unusual
circumstances/not D’s fault, OR may treat as waived (Carteret, treat Rule 13 as preclusion), esp. if no pleading is filed.
(2) Exceptions.
The pleader need not state the claim if:
(A) when the action was commenced, the claim was the subject of another pending action; or
(B) the opposing party sued on its claim by attachment or other process that did not establish PJ over the pleader on that claim,
and the pleader does not assert any counterclaim under this rule.
(b) PERMISSIVE Counterclaims.
A pleading may state as a counterclaim against an opposing party ANY claim that is not compulsory.
(c) Relief Sought in a Counterclaim.
A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or
differs in kind from the relief sought by the opposing party.
(d) Counterclaim Against the United States.
These rules do not expand the right to assert a counterclaim — or to claim a credit — against the United States or a United States officer
or agency.
(e) Counterclaim Maturing or Acquired After Pleading.
The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after
serving an earlier pleading.
(f) [Abrogated]
(g) Crossclaim Against a COPARTY: [permissive, D can raise or sue in separate proceeding, EXC some state statutes make compulsory
e.g. KS, GA]
A pleading MAY state as a crossclaim any claim by 1 party against a coparty if the claim arises out of the transaction or occurrence that is
the subject matter of the original action or of a counterclaim, OR if the claim relates to any property that is the subject matter of the
original action. The crossclaim MAY include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim
asserted in the action against the crossclaimant [indemnity].
(h) Joining Additional Parties.
Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.
(i) Separate Trials; Separate Judgments.
If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has
jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.
28 U.S.C. 1367: Supplemental Jurisdiction
[(a) gives supp juris to extent of Constitutionality (codified Gibbs), (b) limits in diversity cases (Kroger), (c) gives discretion to refuse along
Gibbs lines, (d) SOL on supp claims later dismissed]
(a) (Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute), in any civil action of
which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action w/in such original jurisdiction that they form part of the same case or controversy under Article III of the
United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties,
[even non-diverse ones following as many state claims as P has in fed Q case, as long as part of same “constitutional” case]. [Attempt to fix
Finley (5-4, FTCA claim against FAA after kid deaths and local nondiverse utility co joined, destroying diversity, Scalia: constitutional, but no
pendent party juris w/o statutory grant)]
(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 [DIVERSITY JURIS] of
this title, the district courts shall NOT have supplemental jurisdiction under subsection (a) over claims by Ps against Ds made parties under
Rule 14, 19, 20, or 24 (3rd/joined parties) of the FRCP, OR over claims by persons proposed to be joined as Ps under Rule 19 of such rules, OR
seeking to intervene as Ps under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent
with the jurisdictional requirements of section 1332. (Kroger issue, nondiverse P vs. TPD once D was dismissed). [EXC: some cts allow if
TPDPcounterclaim vs. TPD][ALLOWS Rule 20 joinder of nondiverse Ps not meeting 75k, Allapattah, overcoming 1332; but
complete diversity still req’d no matter what, see hypos]
(c) The district courts may DECLINE to exercise supplemental jurisdiction over a claim under subsection (a) if—
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction (e.g., where claims are
already subject to litigation in state ct, comity considerations, extreme jury confusion).
(d) SOL for claims under (a) tolled while the claim is pending and for a period of 30 days after it is dismissed (unless State law
provides for a longer tolling period). (Jinks upheld constitutionality)
HYPOS
E.g.: 1367 Diversity Anchors, Auto Accident
P (VA)—diversity claim over 75k--D1 (MD), D2 (VA).
1367a is met b/c same trans/occur, but 1367b NOT met (no diversity juris over claims by Ps against parties joined by 14, 19, 20 (P
joining), 24)
Designed NOT to overrule 1332 (COMPLETE diversity)
How about diversity case, P (VA)/D (MD): AND
P2 wants to join, VA but <75k: 1332 bars, each must meet 75k, but 1367b ALLOWS, Allapattah
P3 wants to join, MD but >75k: 1332 bars AND so does 1367 (always need diversity)
Counterclaims, Auto Accident (Rule 13)
P (MD)—D(VA), neg XC: compulsory; breach of K: permissive
JOINDER (claims and parties): goal to get the right parties together to be fair, accurate, consistent, efficient
1.
JOINDER BY Ps: Note: P must have standing (injury in fact), capacity (not infant/incompetent/some unions), be RPI.
Procedural:
Claims: FRCP 18(a): permissive, allows P “as many claims as it has” against other party as long as SMJ is satisfied (jurisdictional).
Parties: FRCP 20: can join Ds when liability arises out of (1) same transaction/occurrence and (2) raises a common question of law or
fact (e.g. apportioning liability). (Schwartz)
Jurisdictional: regular SMJ or §1367, gives supp juris to full extent of Constitution (Gibbs)
2.
JOINDER BY Ds:
A.
Compulsory Counterclaims
Procedural: Rule 13 (same trans/occur), arising from the same circumstance w/o which neither party would find it necessary to seek relief
(trend is toward broad interpretation, met if CC is “logically related”). MUST raise or MAY be waived; cy may see as estoppel/waiver
(Dindo—may allow to be litigated later if not really D’s fault) or rule preclusion (Carteret, waived)
Jurisdictional:
Still need to meet SMJ. Note: 1367b bars P claims involving diversity issues, so D claims NOT exempted. If supp juris needed (§1367), most
cts easily conclude that compulsory claims satisfy.
Arising out of the same transaction (ct Rules: 13, 20) < common nucleus of operative fact (interpreting constitution)
B.
Permissive Counterclaims:
Procedural:
Rule 13(b), “any claim that is not compulsory” (open season). If D joining claim, must file CC and THEN join unrelated claims. Schaffner: NOT
arising out of the same transaction BUT arising out of common nucleus of operative fact. If there is a question as to whether a CC arises from
the same transaction/occurrence (making it compulsory, 13(a)), Rule 13(b) allows D to err on side of asserting any claim not compulsory
against the P in the pending case (Rule 18 also says D can add “as many claims as it has”).
Jurisdictional:
Still need SMJ, if none, need supp juris (§1367). Many cts: permissive CCs—which do NOT arise from same transaction/occurrence—
do NOT satisfy Gibbs and cannot invoke supp juris. Other cts: read more broadly, only need “loose factual connection” (e.g. Jones v.
Ford Motor, discrimination claim/breach of K XC, all claims tied to P’s choice to buy a Ford car).
C.
Crossclaims (co-parties), Rule 13(g):
Procedural:
Rule 13(g), “same transaction/occurrence (giving rise to the original claim OR counterclaim)”, but NOT compulsory (party may
choose to assert in pending case or sue on it in separate proceeding).
EXC some state statutes make compulsory (KS, GA).
Some cts say P can’t raise XC against co-P until D raises CC against the Ps.
*All the other rules kick in once first crossclaim made, then Rule 18: O can join “as many claims” as she has, even
unrelated (EXC: if relying on supp juris, then wouldn’t be same trans/occur); also Rule 13: D must check for any compulsory
crossclaims in response, e.g. indemnity).
Jurisdictional:
SMJ/supp juris (§1367), note 1367b exemption doesn’t apply b/c not brought by P.
D.
IMPLEADER (FRCP 14): allows D (TPP) to join absentee (TPD) “who is or may be liable to D for all/part of claim”
(indemnity/contribution). Rationale: efficiency/consistency (1 suit not 2), accuracy (liability b/t parties). Once joined, Rule 18:
can join other claims (beyond indemnity/contribution, e.g. car damage as well as indemnity when TPD borrowed D’s car). D can
always implead TPD before judgment (Rule 14 trumps contrary state law, Markvicka).
Procedural: Rule 14, a1= D procedure for impleading TPD/timing, a2= TPD claims/defenses (downsloping), a3= P claims vs. TPD
(upsloping), b=P can do same if rule would allow D to do so.
Jurisdictional: All impleader/upsloping/downsloping claims still need SMJ or supp juris. Impleader/downsloping clearly invoke supp juris,
but UPSLOPING create doubt (Kroger); although 1367b doesn’t apply (although a P, didn’t bring in TPD) cts still don’t allow supp, need
independent SMJ.
FRCP 14: 3rd Party Practice [Indemnity/Contribution]
(a) When a Defending Party May Bring in a 3rd Party.
(1) Timing of the Summons and Complaint.
A D party may, as TPP, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim
against it [indemnity (K)/contribution (tort)]. But the TPP must, by motion, obtain the court's leave IF it files the TP complaint more
than 14 days after serving its original answer.
(2) TPD’s Claims and Defenses.
The person served with the summons and third-party complaint — the “TPD”:
(A) MUST assert any defense against the TPP’s claim under Rule 12 (defenses/objections);
(B) MUST assert any counterclaim against the TPP under Rule 13(a) (compulsory XC), and MAY assert any counterclaim against
the TPP under Rule 13(b)(permissive XC) or any crossclaim against ANOTHER TPD under Rule 13(g)(XC vs. coparty);
(C) MAY assert against the P any defense that the TPP has to the P’s claim; and (“downsloping”)
(D) MAY also assert against the P any claim arising out of the transaction or occurrence that is the subject matter of the P’s claim
against the TPP. (“downlsoping”)
(3) P’s Claims Against a TPD (“upsloping”).
The P MAY assert against the TPD any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's
claim against the TPP. The TPD MUST then assert any defense under Rule 12 (defenses/objs) and any counterclaim under Rule 13(a)
(compulsory XC), and MAY assert any counterclaim under Rule 13(b) (permissive XC) or any crossclaim under Rule 13(g) (XC vs.
coparty).
(4) Motion to Strike, Sever, or Try Separately.
ANY PARTY may move to strike the third-party claim, to sever it, or to try it separately.
(5) TPD’s Claim Against a Nonparty.
A TPD may proceed under this rule against a nonparty who is or may be liable to the TPD for all or part of any claim against it.
[(6) Third-Party Complaint In Rem (Admiralty/Maritime).
(b) When a P May Bring in a Third Party.
When a claim is asserted against a P, the P may bring in a third party if this rule would allow a D to do so.