Civil Procedure Outline
I.
Introduction to Civil Procedure
A. Introductory Cases:
a. Capron: Established that courts can only rule on cases specifically in their jurisdiction. Federal courts are of
limited SMJ and they cannot hear any case
b. Des Moines: Establishes that a decision made by a court will stand even if it’s jurisdiction will be eventually be
found to be questionable, except when there is no subject matter jurisdiction, allowing the judgment would
infringe on the authority of the judicial system and the decision was rendered by a court with an inability to
determine its own jurisdiction
II.
Traditional Basis of Jurisdiction
A. Personal jurisdiction is the power of a court to hear a case between parties.
B. Pennoyer (1877) – dispute over land – NO PJ b/c no jurisdiction over land or person
a. In Personam – jurisdiction over person
i. Presence/Property
1. Includes transient presence
ii. Domicile/Residence
1. Domicile of a corporation is their principle place of business (PPB) or where they are
incorporated
iii. Consent
1. Implied – Hess (statute in state required in-state agent for service of process on impliedly
consenting non-resident motorists)
2. Express
A. In Rem – property is the subject of the dispute; judgment here is limited to the value of the property
B. Quasi in Rem (QIR) – Typically property is unrelated to suit and is attached at the outset of the suit to obtain
jurisdiction
III.
Modern View of Jurisdiction
A. International Shoe (1945) - shoe company refuses to pay unemployment taxes – PJ due to MCT
i. Established minimum contacts test (MCT); new basis of jurisdiction
a. Does the D have sufficient MC for the court to obtain jurisdiction?
1. Extensive + claim related = Valid PJ
2. Extensive + claim unrelated = Sometimes PJ; general jurisdiction
3. Isolated + claim related = Specific jurisdiction; sometimes PJ
4. Isolated + claim unrelated = No PJ
B. World Wide Volkswagen (1980) – D sells car to P who brings car to another state and sues there – NO PJ due to
lack of purposeful availment
i. Establishes fairness factors:
a. Fairness factors:
1. Burden on the defendant
2. Forum’s interest
3. Plaintiff’s interests
4. Convenience to third parties (witnesses)**
5. Interest in efficiency of resolution
6. Furtherance of substantive policies
ii. Establishes purposeful availment requirement
a. D must avail themselves of benefits and protections of the f.s.
b. D must have purposefully directed its activities towards the f.s.
1. Marketing to the state
2. Designing a product for the state
3. Advertising to the state
4. Sending agents to the state
5. Maintaining an ongoing or continuous obligation w/ the state
c. D must reasonably anticipate being haled into court there
iii. Note: The unilateral movement by the P does not subject D to PJ (See Hanson)
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IV.
V.
VI.
C. Asahi (1987) – P sues foreign corp. who indemnifies Asahi (D); P’s claims were settled; foreign corp. continues suit
with D – NO PJ due to unfairness
i. Fairness rarely defeats purposeful contacts; except in this case
ii. Establishes that fairness is a necessary requirement to fulfill even if MCT is satisfied:
Long-Arm Statutes – Specific Jurisdiction
A. Before the constitutional question (MCT) can be answered, statutory test must be satisfied
B. Gray (1961) – manufacturers component incorporated in product is defective – Valid PJ b/c MCT allows act to be
substantial contact to f.s
i. Establishes statutory question must be answered before addressing the constitutional issue
ii. Note: Here the court rules that the tortious act cannot be separated from the injury and therefore the
place of injury is the most convenient place for trial – this is NOT binding b/c this was not a S.CT.
Case
Applying the Modern View – Specific Jurisdiction
A. Contracts Cases – merely entering a contract with a resident in f.s. is not enough to subject D to PJ; only valid
if purposeful activity: maintenance and negotiation
i. McGee (1957) – single insurance contract with CA resident – Valid PJ because purposeful activity
a. Court determined there were sufficient contacts b/c the D purposefully conducted business with
the P; D knew maintenance of contract would be maintaining contacts with the f.s.
ii. Hanson (1958) - single contract for trust established in PA with PA resident and DE bank – NO PJ
because no purposeful activity
a. Contacts not sufficient b/c the unilateral movement of the P was not enough to subject the DE
bank to PJ in FL; D did not target FL nor purposefully avail itself (See WWVW)
iii. Burger King (1985) – defendant entered into 20-yr. contract with BK, a FL corp., with a choice of law (but
not choice of forum) provision for Florida law. Court holds that through entering 20 year contract with FL
corp, Michigan defendant had sufficient minimum contacts to establish personal jurisdiction in FL.
Commercial contract for franchise with BK – Valid PJ because purposeful activity
a. P knew he was entering a long-term contractual commitment with the FL franchise & purposefully
maintained those contacts; P did avail himself of the benefits and protections of FL law;
negotiated with the corp.
b. Note: The choice-of-law clause is not enough to subject D to PJ
B. Stream of Commerce (S.O.C) Cases – Is mere awareness that the product is being injected in the S.O.C enough
to subject the D to PJ?
i. Asahi (1987) – indemnification claim against Asahi, a Jap. Corp. did business in Japan w/ the knowledge
that a percentage of the products would go to the U.S. (wholesaler problem) – NO PJ b/c mere awareness
not enough and unfair
a. Plurality opinion (4); O’Connor: Mere awareness is not enough; need something more – stream of
commerce + (generally allows for jurisdiction)
b. Concurrence (4); Brennan: Mere awareness can be enough for purposeful availment
c. Dissent (1); Stevens: Mere awareness doesn’t matter; looks at volume of sales goods/activities
d. 8 of 9 justices agree jurisdiction here would be unfair:
1. High burden on D to litigate in the US.
2. CA has no interest in the claim, since P settled already
3. Not reasonable for two foreign corps. to litigate in U.S.
4. Witness are abroad
ii. J. McIntyre (2011) – metal shearing accident (distributor) – NO PJ because need more than mere
awareness (plurality opinion)
a. Kennedy (plurality, 4): Need more than mere awareness; it’s the D’s actions not its expectations.
Even though availment to U.S., D did not target a specific state; foreseeability not the criteria
b. **Breyer (concurrence, 2)**: Case by case basis; says ordinarily a single sale is not enough.
Must take into account other factors; no broad test; SOC+ is a minimum basis
c. Ginsburg (dissent, 3): There is PJ because D availed itself to the U.S., therefore D should be
subject to PJ in any state where the product goes
General Jurisdiction – high threshold for MCT – “at home” theory
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VII.
VIII.
IX.
X.
A. Perkins – director ran business from his home – Valid GJ b/c corp. was “at home”
B. Helicopteros – NO GJ b/c corp. was not “at home”
C. Goodyear (2011) – GY tired bursts in foreign country – NO GJ b/c contacts were not sufficient
i. Tens of thousands (small percentage) of tire sales NOT ENOUGH; need something more
ii. D has to be “at home” in f.s. – place of incorporation or HQs or factory
iii. Corps. are not subject to suit everywhere in the U.S.
iv. When the defendants contacts with the state are so extensive that it is at home there
D. Supplemental notes:
i. The court in Goodyear endorsed that a corporation is subject to general in personam jurisdiction where it is
incorporated and its PPB. However, it also states where the corp. is fairly regarded as home analogizing to
the state of domicile of natural person
ii. Leaves open the possibility to be subject to suit in other states in addition to the state of its incorporation
and its PPB.
iii. The court’s emphasis on places where the corporation is “at home” suggests that they ay not be but we
don’t know.
iv. Typically it is not unfair to subject a D to jurisdiction – usually passes fairness test
v. DO NOT CONFUSE GOODYEAR WITH 1332(c)(1)
Jurisdiction Over Property
A. Quasi In Rem (QIR) Jurisdiction: QIR actions are actions that would have been in personam if jurisdiction over D’s
person had been attainable. Instead, property or intangibles are seized not as the object of the litigation, but merely
as a means of satisfying a possible judgment against D.
B. Harris (1885) – garnishee proceeding to collect debt from Harris – VALID QIRJ
i. Debt is a form of property and debt clings to the debtor therefore debt can be seized
C. Shaffer (1977) – No QIRJ b/c does not past MCT
i. MCT applies to all forms of jurisdiction including QIR
ii. Traditional QIR would disregard MCT
iii. There is no purposeful availment b/c trustees are corp. fiduciaries and their status is not the issue
Jurisdiction Based on Presence
A. Burnham (where service of process was valid when D was in the f.s. for a limited amount of time)
i. Scalia (rules): Traditional basis should be upheld. Pennoyer was never thrown out; just modified. Presence
is always a sufficient basis.
ii. Brennan (standards): Presence is good enough when D is voluntarily in the f.s (knowing and willingly).
Presence is usually a sufficient basis.
B. Transient presence typically limited to individual defendants
Jurisdiction Based on Consent
A. General Principle: MC is not required to satisfy consent
i. Express
ii. Implied:
a. Statute: Hess
b. Litigation Conduct: Failure to objection to PJ by addressing the merits of a suit
1. Waiver
2. Sanction
B. Insurance Corp. of Ireland:
i. Here, challenge of merits (general appearance) meant the D submitted to jurisdiction
ii. A court can always determine if it has jurisdiction – a court can always decide if they can have a case
iii. The sanction for not turning over discovery is concluding that the court had jurisdiction
C. Ratliff:
i. Registration alone is generally not a sufficient basis for jurisdiction
D. Bremen and Carnival Cruises Lines
i. Forum selection clauses are not typically enforceable but they can be if they are fundamentally fair;
typically subject to judicial scrutiny.
ii. In Carnival, said the clause was fundamentally fair even though the clause was printed on the ticket.
Challenges to Personal Jurisdiction
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A. Territorial Limits of Effective Service 4(k)(1): Serving process or filing of a waiver establishing personal
jurisdiction over a D:
i. Who is subject to the jurisdiction of a court of general jurisdiction in state where the district court is located
ii. Who is a party joined under Rule 14 & Rule 19.
iii. When authorized by a federal statute
B. Federal Claim Outside State – Court Jurisdiction (4)(k)(2): Must be the case that:
i. Asserting a federal claim
ii. There is no state in which the D would be subject to PJ
a. Like McIntyre
b. When the D’s only contacts are with a specific state that has a long-arm statute that is too narrow
iii. PJ in federal court would be consistent with the constitution
C. FRCP 12(g)(h) Waiving Motions: A D waives the right to challenge PJ, notice, service and venue by failing to
raise it in either a pre-answer motion or either answer itself or if you raised some of them but not all of them. You
have to consolidate all of the defenses into one motion/document.
i. Modern approach: You still have to raise objections to these issues upfront or you’ll waive them
D. Direct Attack: Appearing specially to challenge jurisdiction
E. Collateral Attack: In a different suit, challenge jurisdiction of prior judgment
F. Appearance
i. General Appearance: Appear to challenge merits
ii. Limited Appearance: Appear in a quasi rem action to get the full value of property seized by the court
iii. Special Appearance: Appear to challenge jurisdiction
XI.
Notice and Service of Process
A. Judgment without notice is unconstitutional
B. Was the D given proper notice?
i. Two step process:
a. Did the relevant statute authorize the service of process?
1. Look at 4(e)(1) &(2) for individuals and 4(h)(2) for corporations.
b. If yes, does it satisfy the constitutional standard (Mullane)
C. The requirement of reasonable notice = Mullane
i. “Reasonably calculated under the circumstances to give actual notice”
ii. Known and present = publication is ineffective and cannot be justified by a cost-benefit analysis. Personal,
in-hand service is necessary. Court says ordinary mail is good enough, but still need to make the
appropriate steps to notify the D
iii. Unknown persons = Publication might be good enough for
a. Persons whose identities or whereabouts are unknown; or
b. Persons whose interests are conjectural [condition for them to receive benefit]; cost benefit
analysis.
iv. Hierarchy means of service of process from court’s analysis (from meaningful to not):
a. Personal, in-hand service on D – always good enough, but not necessary
b. In-hand on someone else (“substituted service”), i.e., agent
c. Certified/registered mail
d. Ordinary mail – sometimes is good enough
e. [Posting]
f. Service by publication (constructive service) – only good enough when there is no other option
v. When is publication a valid service of process?
a. If it’s not reasonably possible or practical to give better notice
D. How to provide effective service of process, on an individual defendant:
i. Waiver of service (4(d)): Send waiver form with complaint and summons, if D does not return they have
to pay money
a. Failure to Waive 4(d)(2): Failure to waive without good cause to return a waiver, the court must
impose on the defendant: a) expenses later incurred in making service and; b) the reasonable
expenses, including attorney’s fees or any motion
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b.
I.
II.
Time to Answer After a Waiver: A defendant who timely returns a waiver need not serve an
answer to the complaint until 60 days after request was sent or 90 days if it is outside the
jurisdiction of the U.S. [Carrot]
ii. Serving an Individual in the U.S 4(e)(1)
a. An individual may be served following state law for serving a summons in the state where the:
1. District court is located; or
2. Where service is made
i. Most states do not allow service of process by first-class mail
b. 4(e)(2): Proper service can be made by
1. In-hand delivery on a:
i. Defendant
ii. Person of suitable age/discretion residing at the defendant’s dwelling or usual
place of abode
iii. Agent authorized by appointment or by law to receive service of process
E. How to provide effective service of process, on a corporate defendant:
i. Waiver (4(d)) still applies to corporate defendants
ii. Serving a Corporation, Partnership, or Association (4)(h)(1)(A): Any method allowed by 4(e)(1) OR
iii. (4)(h)(1)(B) In-hand delivery:
a. Officer, managing agent or general agent etc.
1. Insurance Co. of North America: It permits it to be made upon a representative so
integrated with the organization that he will know what to do with the papers. Courts do
not strictly construe these terms.
b. Or any agent authorized by
1. Appointment: the corporation has designated someone by some other method (like a
contract)
2. By law: a statute designates this
F. Actual notice is not enough, service must properly effected in accordance with the FRCP
G. National Equipment Rental, LTD. V. Szukhent
i. Rule: A party to a private contract may appoint an agent to receive service of process, and that service will
be valid if that party promptly accepts and transmits notice of service.
ii. Dissent: It infringes on constitutional rights and DPC. FRCP 4(e)(2)(C) should define what an agent
authorized by appointment is by: denying validity of an agent who has conflicted interests, determining that
the appointment contains an explicitly condition and the individual understandingly consents.
SUBJECT MATTER JURISDICTION
Subject matter jurisdiction (SMJ) is defined as the power of court to hear a certain type of case. SMJ is defined in Article
III §2 of the Constitution, which limits jurisdiction of the federal courts. Main cases are diversity of citizenship (§1332)
and federal question cases.
A. FRCP 12(h)(3): Lack of SMJ
i. If the court determines at any time that it lacks SMJ, the court must dismiss the action
B. Capron:
i. Court has jurisdiction to decide jurisdiction
ii. Federal courts are of limited subject matter jurisdiction and they cannot hear any case.
iii. Policy implications: Limitations are placed on the federal government so that they cannot infringe on state
power
Diversity Jurisidiction: §1332
A. There is SMJ in suits between parties of different states or foreign states (alienage jurisdiction) where the amount-incontroversy exceeds $75,000. This was initially imposed to prevent bias, however because federal judges are
appointed rather than elected, this point seems to be obsolete
B. Complete Diversity - Strawbridge
i. No party on one side of the “v” may be a citizen of the same state of as any party on the other side.
ii. If there is any party on one side of the “v” with the same state citizenship of a party on the other side of the
“v”, then the complete diversity requirement is not satisfied.
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iii. Diversity is determined at the time the suit is filed, subsequent changes in citizenship of the parties don’t
change diversity (Mas)
C. Determining citizenship
i. An individual is a citizen of a state when:
1. They are a U.S. citizen
2. They are domiciled in the state
ii. To determine what the domicile of a person, they must show that they have:
1. Physically taken up residency with
2. The intent to remain indefinitely or absent any intention to go elsewhere
3. “A person’s domicile is the place of his true, fixed and permanent home and principle
establishment and to which he has the intention of returning whenever he is absent therefrom.”
Mas v. Perry (FR and MS citizen)
a. To determine intent from a more objective perspective, consider the following
factors: where litigant exercises civil & political rights; pays taxes; owns real and
personal property; has a driver’s and other licenses; maintains bank accounts; belongs to
clubs and churches; has places of business or employment; maintains a home for his
family – each of the factors on its own cannot be considered to be indicative of the
litigant’s intent, but taken as a whole, it can
iii. Mas v. Perry: Mrs. Mas was still citizen of MS b/c she lacked requisite intention to remain in LA while
there as a graduate student and teaching assistant until she acquires a new domicile, she remains a
domiciliary of her old domicile
1. If you U.S. citizenship but not state citizenship, then you cannot be sued in federal court but you
can be sued in state court.
iv. §1332(c)(1): A corporation’s citizenship is determined by where they are incorporated and where their
principal place of business (PPB) is.
1. In Hertz, the court said that the nerve center (i.e., headquarters or decision making and overall
control take place) is a corporation’s PPB b/c principal indicated main, leading and prominent,
inter alia
2. Nerve center can be in more than one place
v. An unincorporated company’s (partnership or association) citizenship is determined by the citizenship of
all its members
vi. In a representative’s action (like a class action), the citizenship of the representative is considered the
citizenship of the party
1. EXC: §1332(c)(2): where the legal representative is representing a the estate of the decedent, an
incompetent or infant, then the representative’s citizenship is decided by the latter
D. Amount in Controversy: Must be more than $75,000 (at least $75,000.01)
i. The sum claimed by the plaintiff controls if the claim is apparently made in good faith. In order to justify
dismissal, it must appear to a legal certainty that the claim is for less than the jurisdictional amount.
ii. The court must afford the P an “appropriate and reasonable opportunity to show good faith in believing that
a recovery in excess of the jurisdictional amount is reasonably possible”
iii. If punitive damages are permitted under controlling law, the demand for such damages may be included in
determining whether the jurisdictional amount is satisfied
iv. Consider not the amount actually recovered, but the amount that could potentially be recovered
E. Injunctive Relief
i. Questions to ask:
1. What is the injunction worth in monetary value? (hard to determine)
2. What is the harm to the plaintiff?
a. To whom should we calculate the cost or value of the injunction?
3. What was the harm to the plaintiff and if the injunction would remedy that harm?
a. Sometimes look to the cost to the defendant to satisfy AIC
F. Aggregation
i. One P can add together as many claims as he/she has against one defendant whether or not they’re related
to satisfy AIC.
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ii. Multiple Ps cannot aggregate their claims together for purposes of satisfying the AIC, unless the parties that
have an undivided and common interest such as joint ownership.
iii. P must satisfy the AIC against EACH defendant. P cannot aggregate the amount of claims against different
defendants in order to satisfy AIC.
iv. However, P can aggregate claims against several Ds on a theory of J&S liability if your claim is over
$75,000.
III.
IV.
Federal Question Jurisdiction – present some question of federal law
A. U.S.C §1331: The district court shall have original jurisdiction of all civil actions arising under Constitution, laws
or treaties of the U.S.
B. No amount-in-controversy requirement here
C. “In general, a claim arises under federal law if federal law creates the right that the plaintiff is seeking to vindicate.”
-- Smith
D. Two types of cases where the availability of federal question jurisdiction is unclear:
i. When the content of state law turns on federal law in some way.
1. It’s possible for a claim that arises under state law to be treated as if it arises under federal law;
this is rare
ii. Federal question raised by the defendant in response to the plaintiff’s claim
E. Osborn v. Bank of the United States
i. Article III granted jurisdiction over all cases where a question of federal statutory or constitutional law
"forms an ingredient" of a case (applies to defenses and counterclaims that arise under federal law).
ii. Broad rule
1. Constitutional broad rule – allows claims like Mottley to be heard
F. Louisville & Nashville R. Co. v. Mottley
i. Courts should raise SMJ question when there is a defect
ii. Narrow rule – well-pleaded complaint rule
iii. The court held that the mere allegation that a defendant will raise a federal question in his answer is not
sufficient to create jurisdiction. Mottley’s complaint was based on a contract claim and did not raise a
federal question.
iv. The claim itself has to arise under federal law to create federal question jurisdiction (FQJ)
v. “…A suit arises under the constitution and laws of the U.S. only when the P’s statement of his own cause
of action shows that it is based upon those laws or that Constitution”
G. Pros and Cons of the Rule
i. Pros: Efficiency for federal court, state courts don’t want government to decide their state laws, P may
manipulate their complaint “anticipating” a federal defense that the D may raise
ii. Cons: Less uniformity of federal law because more cases are going to state court
Venue and Change of Venue
A. Venue (where):
i. §1391(b): A civil action may be brought in a judicial district:
1. Where any D resides if all Ds are residents of the state in which the district is located
a. §1391(c): Residency for venue purposes
i. (1) A natural person resides in the judicial district in which he is domiciled
(including aliens)
b. §1391(d): Residency of Corporations in States with Multiple Districts
i. Any judicial district in which it would be subject to personal jurisdiction in that
district
2. In which a substantial part of the events or omissions giving rise to the claim occurred or a
substantial party of property that is the subject of the action is situated OR
3. If there is no district in which an action may otherwise be brought as provided in this section,
any jurisdiction in which any D is subject to the court’s personal jurisdiction
a. Fallback
B. Transfer (when can you move a suit from one unit in the system to another):
i. §1404 (intrasystem device): For the convenience of parties and witnesses in the interest of justice, a
district court may transfer any civil action to any other district or division where it might have been
brought or to any district or division to which all parties have consented
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1.
Two-step test:
a. Is the district court to which the parties are seeking to transfer the suit where it originally
might have been brought or all parties have consented to transfer?
i. “Might have been brought” = appropriate PJ
ii. Consent can be waived by no objection
b. Would it be in the interest of justice and for the convenience of witnesses and the parties
to transfer it there?
i. Same consideration of second step of personal jurisdiction test
C. Forum Non Conveniens (when is the forum and the judicial system so inconvenient and inappropriate to
house the suit, to dismiss it).
i. Permits dismissal of a suit when the chosen forum is inappropriate – suit should be litigated in a different
system entirely
ii. Use a balancing test of fairness factors comparable to “minimum contacts” fairness test
1. Also consider public policy
iii. Considered an exceptional remedy to protect against forum choices that are particularly inconvenient,
inappropriate or unfair
iv. Balancing test:
1. Third parties of witnesses
2. If some other system has a stronger connection to the controversy
3. Is one system clearly inadequate
4. Fairness to parties
v. Not a mechanical test
V.
Removal
i. Justification for removal: D subject to protections that the P is
ii. Rules of removal
1. Only the [original] defendant(s) can remove
2. All Ds must join or consent to the removal (§1446(b))
3. Original jurisdiction rule
a. Exceptions
i. Artful pleading
ii. Fictitious Ds
iii. Complete preemption (area of law has been completely federalized; ERISA)
4. §1441(b)(2): Non-citizen for diversity suits only – removal cannot be granted if any Ds are
citizens of the state which “auction is sought” in a diversity suit
5. §1441(a)Vertical removal - a case filed in a state court can be removed into district court in which
the case is filed
iii. §1441(c):
1. Claim arising under federal law and another claim without original jurisdiction and supplemental
jurisdiction, can be removed without the inclusion of the claim that
2. Upon the removal of the action, the district court shall sever the claim that does not have original
jurisdiction or supplemental jurisdiction and MUST remand the claim to the state court.
PLEADINGS
XII.
Pleadings generally are to provide notice to the defendant
XIII.
FRCP 7: Usually includes complaint and answer and sometimes the court allows a reply
XIV.
Complaint:
A. FRCP 8(a): A pleading that states a claim for relief must contain:
i. (1)Short and plain statement for the court’s jurisdiction
a. SMJ and PJ
ii. (2) Short and plain statement of the claim
a. Discount legal conclusions
b. And ask if the allegations that remain are sufficiently plausible
iii. (3) Demand for relief
a. P is not limited by the amount he asks for in the complaint – can recover more rule 54
iv. Conley (vacated): A complaint should not be dismissed for insufficient satisfaction of rule 8(a)(2) unless it
can be proven that the P can prove no set of facts
v. Twombly and Iqbal: Court states the complaint should allege specific facts to nudge the case from
conceivable to plausible –
a. The complaint must describe “enough facts to state claim to relief that is plausible on its face”
B. Motion to Dismiss (12 (b)(6)): Failure to state a claim for which relief can be granted
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XV.
XVI.
i. Two types:
a. Specific factual allegations but does not state a claim for relief
1. EX: Someone making mean faces
b. Not specific or significant allegations
ii. Other possible motions:
a. 12(e): Motion for a More Definite Statement:
1. When the pleading is vague or ambiguous that the party cannot reasonably prepare a
response
b. 12(f): Motion to Strike
1. The court can strike immaterial, impertinent or scandalous matter from the pleading
2. This is rare and disfavored
C. 12(h)(1)(A): IF A PARTY DOES NOT RAISE AN OBJECTION TO LACK OF PERSONAL JURISIDICTION,
IMPROPER VENUE, INSUFFICIENTY OF PROCESS OR INSUFFICIENY OF SERVICE OF PROCESS, THE
PARTY WAYS THIS RIGHT TO DO SO
Answering the Complaint:
A. Default judgment
B. Answer:
i. Admit, deny or says he has insufficient information to file an answer
ii. 8(c): Affirmative defenses are not denial, they are excuses or avoidances to the plaintiff’s claim
a. Doesn’t seek to meet the allegations of the claim, offers an explanation
b. If the D fails to raise an affirmative defense in the answer, he waives it (Ingram)
iii. 8(b)(2): Denials: The denial must fairly respond to the substance of the allegation
iv. 8(b)(3): General and Specific Denials
a. A party can deny all of the allegations of a pleading by general denial.
v. 8(b)(4): Denying Part of an Allegation
a. 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
Amendments
A. Two principle amendment issues:
i. (1) Amendment: When is a party allowed to amend a pleading?
a. Where in the proceedings and what applies?
b. Once as a matter of course within 21 days:
1. 15(a)(1): A party may amend a pleading once as a matter of course (without the
permission of the court)
i. (A) Within 21 days after serving it or
ii. (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
12(b), (e), or (f),
c. Before trial, with leave or court (our consent of parties) (“freely given”)
1. 15(a)(2): In all other cases, a party may amend its pleading only with the opposing
party’s written consent or with the court’s leave. Should be “freely given”
i. Once a party has already invoked the opportunity to amend under 15(a)(1), you
can only amend with the court’s permission or the party
ii. If doing the amendment would permit the merits to be fully litigated and would
not be unduly prejudices the other party
d. Actual or constructive amendment at trial with implied or express consent
1. 15(b)(2):
i. Implied consent can be granted when the other party does not object at trial and
the party has fair notice of the question
e. Over Objection at trial – 15(b)(1): If an issue is not in the pleadings is not raised in trial, the
court can permit amendment notwithstanding objection from a party if the it will so aid in
presenting the merits and the objective party fails to satisfy the court that the evidence would
prejudice that party’s action or defense on the merits
ii. (2) Relation Back: What happens when a party seeks to amend a pleading to add a new claim or a
claim against a new party after the statute of limitations has run on that claim?
a. 15(c)(1): When an Amendment Relates Back
1. An amendment to a pleading relates back to the date of the original pleading when:
i. (A) The law that provides the applicable statute of limitations allows relation
back
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XVII.
XVIII.
ii. (B) The amendments asserts a claim or defense that arose out of the conduct,
T&O set out or attempted to be set out in the original pleading
iii. (C) Amendment can be change the party or the naming of the party if (B) is
satisfied and within the period of time set out in 4(m) (120 days) if the party
brought in:
1. Received notice will not be prejudiced in defending the merits AND
2. Knew or should have known that the action would have been brought
against it, but a mistake concerning the proper party’s identify.
3. Krupski:
a. That a plaintiff knows of a party’s existence does NOT
preclude her from making a mistake.
b. Similarly, deliberately choosing to sue one party over another
doesn’t necessarily mean you cannot make a mistake in doing
so.
INTEGRITY IN PLEADING: RULE 11
A. (a)Every paper must be signed by a lawyer
B. (b) Must certify its not for an improper purpose, has a basis in law or ought to have one and the factual allegations
have support or will after discovery; denials are warranted on the evidence or are specifically identified
i. Retains the obligation of the lawyer to make a reasonable inquiry
C. If Rule 11 is violated (e.g., the complaint, as the lawyer knows, is not well grounded in fact, or supported by any
plausible legal argument), the court must impose an appropriate sanction on either the signing lawyer, the client, or
both. The most common sanction is the award of attorneys’ fees to the other side.
D.
CLASS ACTIONS
A. Hansberry v. Lee:
i. Generally: Your rights cannot be adjudicated for a suit in which you have not been designated as a party
a. Unless you’re an absent plaintiff in a class action suit – judicial economy and efficiency
ii. The representatives have to adequately represent the interests of the class members and has to do fairly
iii. Constitutional minimum of adequacy implicit in the DPC
B. FRCP 23:
i. 23(a): Prerequisites – a class action can be brought on the behalf of all members where there is:
a. (1) Numerosity
1. There has to be enough members of the class to justify the se of the class action
mechanism in this case – impractical to join all members in one suit
i. More than 40 is good enough; less than 25/22 is lacking; in between – look at
variables
b. (2) Commonality
1. There has to be common questions of law or fact in the suit
c. (3) Adequacy
1. The P at a minimum has to have interests that coincide with the absent class members
because the P has the same interests
i. 23(g): The lawyer has to have sufficient experience in class action to handle the
suit – adequacy of representative
d. (4) Typicality
1. The representative’s claims have to be typical of those of the class
e. Basic rule: When it is sufficiently fair to bind the absent class members to the outcome of the
litigation, it is fair to bring a class action
f. These rules substantially overlap
ii. 23(b): Types of Class Actions
a. (1) Prejudice (mandatory class action):
1. (a) When individualized litigation may lead to incompatible standards of conduct for the
D
i. “To the D”
2. (b) Limited “pot” of money (definable sum) available such that if there are multiple
lawsuits, others who may bring the claim later will not be able to find relief
i. “To the Ps”
b. (2) Injunctive Relief: D has acted or refused to act on grounds generally applicable to the class
members and the suit seeks injunctive relief
c. (3) Damage Class: Common questions of law or fact must predominate and the class action suit
must be superior to alternatives
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1.
2.
Applies when the only real connection between class members if that they’ve been
injured roughly in the same way.
Factors to consider:
i. The class members’ interests in individually controlling the action
ii. The extent and nature of litigation concerning the class members that has
already started
iii. The desirability or undesirability of concentrating the litigation of the claims in
the particular forum
iv. The likely difficulties in managing a class action
iii. 23(c):
a.
(2) The best notice that is practicable under the circumstances, including individual notice to all
members who can be identified through reasonable effort must be given to damage class
members
1. Damage class members can opt-out and file suit independently
C. Subject-matter jurisdiction
i. Diversity:
a. Generally: citizenship of individuals in a class action should be based on the citizenship of named
parties (both defendants and plaintiffs)
b. §1332(d):
1. Cannot bring a diversity class action in federal court unless at least one P has been
injured for more than $75,000
2. However, Exxon allows the use of supplemental jurisdiction in a class action where not
all members claims meet the AIC requirement of >$75,000
ii. CAFA Exceptions: Authorizes federal jurisdiction over class actions in which the AIC exceeds $5 mill and
allows the aggregation of claims to meet the AIC
a.
D. Personal jurisdiction
i. Shutts:
a. Whether there’s something about the “class side” of the “v”
b. In the typical class action, a forum can adjudicate the claims of absent members even absent
minimum contacts between the members and the forum
c. Certain protections afforded by the class action device serve as a substitute for minimum contacts
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