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OUTLINE CIV PRO – TRANGSRUD – Fall 2011
I. PERSONAL JURISDICITON (PJ)-what state can we sue D in?
A Court must have power over something
1. D
2. D’s property
Analysis:
1) Does the statute grant PJ? If yes
2) Does the DP Clause allow it?
A. In Personam Jurisdiction-power over the D
1. General in personam jurisdiction-D can be sued in the forum from anywhere in the world
2. Specific “ “- D is sued on a claim that arises from activity in the forum
3. If D doesn’t object to personal jurisdiction its waived –Court does not have a duty to est.
personal jurisdiction—easy to waive under Rule 12 h1 defense
 serve the person within the forum (catch them in state
 domicile person –(McMillan) (can sue them even if temporarily absent)
 corporation—can always sue in the state of incorporation
 can be sued if you consented to be sued in a particular place
1. The Constitutional Limit
Pennoyer v. Neff-physical power of ppl and state: gives us the traditional basis for in personam
jurisdicaion
1.
2.
3.
4.
D was served with process in the forum “presence”: gives general jurisdiction
D’s agent was served with process in the state
D is domiciled in the state: general jurisdiction
D consents to jurisdiction
Hess v. Palowski- hurts Mass P and leaves before #1 serve process. Mass. Statute-drive a motor vehicle in
the state and get in an accident-you have appointed a state official as your agent for service of process
o
o
Consistent with Pennoyer-there was service of process of the agent
Expands personal jurisdiction to implied consent: current in every state.
Non-resident motorist act: specific jurisdiction -acts arising from within the state
A. International Shoe-new doctrinal formula not expansion
Jurisdiction if the D has such minimum contacts with the forum so that exercise of jurisdiction does
not offend “traditional notions of fair play and substantial justice”
1. Flexible doctrine that has led to expansion
2. Clear can serve process on D outside the forum-with min contacts met
3. Does not overrule Pennoyer-test IF D is not present when served—implies this an addition to the
traditional basis
4. 2 parts: contact and fairness
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Rule: D may not have to be present within the territory of forum, he have minimum contacts with
it such that the maintenance of the suit does not offend traditional notions of fair play
In personam requirements under Shoe (rule applies to people and corp)
1. minimum contacts between non-resident D and the forum (incl. benefit, quantity, intentional,
related
2. fair to impose burden on the D
Magee v International Ins. Co. 1953- TX co. sold 1 contract of ins. In CA. Sued in CA for breach. Was
jurisdiction under International Shoe
1. D solicited contract from CA
2. Ps claim arose directly from contact in the forum: relatedness
3. State’s interest: CA protecting its citizens
Limiting: Hanson v. Denkla 1958
1. When applying International Shoe the contact must result from D’s “purposeful availment” to the
forum-(Magee but not Hanson)
2. The unilateral act of another
WWVW Corp. v. Wilson 1980-Family from NY move to AZ, never get there. Rear-ended in OK and the car
blew up
 Litigation in OK. Question of whether there was jurisdiction over the regional distributor-no
business in OK, and the realtor in NY (seaway motors)
 No Jurisdiction-No purposeful availment
 Forseeable?-Ct said foreseeability is relevant, but not enough just for the product to get there
 Need to be foreseeable that the D will get sued in the forum
Calder v. Jones- need not enter the forum to be subject to suit there under Int’l Shoe, need not enter to have
an affect in the forum-Calder Effects Test
The Liberty Interest in Personal Jurisdiction: There is some kind of consent of jurisdiction in the state you
reside—part of that political process
Can have a set of rules that help show a purposeful relationship such that they’ve chosen to affiliate in
Burger King v. Rudzewicz 1985-two guys sued in Miami
 Reaffirms two prong Int’l Shoe Test 1. Contact 2. Fairness
 Must have a relevant contact before fairness can be examined
 Burden is on the D to show that the forum is so “gravely inconvenient” that D is at a “severe
disadvantage on the D”—they didn’t-relative wealth didn’t matter
 availed themselves to FL to enter 20 year relationship, incl. in contract-question of
Asahi-“ stream of commerce” (must discuss both theories—NO Law here)
 selling valves to other states A, B, and the other companies send to more states C,D, E
Split in the Court: MENTION BOTH if arguing stream of commerce
1. Brennan’s camp: there is a contact if I put my product into the stream and reasonably
anticipate that it will get to state C, D, E (then D is purposefully availed)
2. OConnor: You need #1 PLUS an intent to serve states C, D, E
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B. Service of a Natural Person: Bernam
 NJ D sued in CA, on a claim that took place in NJ (therefore CA must have gen jurisdiction)
 D was served with process in CA
 Do the traditional basis like service in the forum survive or have they been replaced by Int’l Shoe
SPLIT CT! No Law, mention both
1. Scalia: presence when you’re served is good on its own (don’t need Int’l Shoe-traditional
basis) (doesn’
2. Brennan: Must do Shoe every time. Traditional basis are gone (had enough benefit in 3
days-avail) (would mean anyone there for 3 days could have juris even if not served in
forum and incident occurred anywhere in the world)
 All 9 justices agreed there was general jurisdiction
ANALYSIS:
There is general jurisdiction if there is “continuous systematic ties” with the forum (where the
line?)
 Obvious ex: Ford HQ in MI, can sue Ford in MI for something that happened in Siberia
 Goodyear: Corp must be at home in the state for general jurisdiction
Comparing Asahi and McIntyre
Asahi two part test
1. O’Connor: -Ashahi didn’t purposefully direct its tire sales in CA. The facts that its tire valves ended
up there is not sufficient for minimum contacts
2. Brennan-Awareness that the large number that would enter CA is all that required for jurisdiction
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Asahi two part test for Personal Jurisdiction: All agreed it would be unfair if not:
minimum contacts
choice of forum reasonable (#1 burden on D and secondary reasons )
McIntyre
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Intended to market product in all 50 states—purposeful availment test is met
D choosing to enter into the benefits of the state
“degree of purposeful affiliation” is paramount –dissent and concurring
Concurring saying though that one contact is not minimum contacts
No great weight put on a foreign co., but some briefs address international law—proper test is
looking at foreign corp and the entire nation
SPECIFIC JURISDCTION
1. minimum contacts
2. looking at whether the contacts are sufficient for jurisdiction
o
o
o
Still more factors to consider—secondary factors cited and relied on but in other cases they
disappear
Asahi and McIntyre don’t place a lot of weight on secondary factors
PJ in cyberspace- same set of criteria
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A: Events attributable to D occurred in Forum but not related to litigation—contacts don’t count heavily
(would need substantial contacts) upper right
C: Attributable to D, occurred in forum a related to (center) just need minimum contacts—most powerful
and persuasive to allow forum to assert jurisdiction
D: Events not attributable to D, occurred in the forum, and relate to the lawsuit—bottom center—WWVW
If not related to lawsuit—need substantial contacts
TEST Under Const. Analysis:
1. Does a traditional basis apply? If so, mention it and mention the split in Bernam
2. Do International Shoe- have to if not traditional basis, and if so the Brennan school would still do it
under Berman
a. Is there a relevant contact btwn D and forum (2 parts)
i.
purposeful availment- D must reach out in some way
ii.
must be foreseeable that D could be sued there
b. Is jurisdiction fair?
i. Does the P’s claim arise from D’s contact with the forum?
5 fairness factors the court mentioned in addition
1. Inconvenience for D (BK says it’s tough to show)
2. State’s interest
3. Π interest
4. Interest in efficiency
5. Interstate interest in shared substantive policies (Kulko-refused jurisd. for family
harmony)
2. Statutory Analysis
o
o
o
o
really the first question before Const. analysis: Does a state statute allow for PJ?
every state seems to allow based on the traditional basis
every state has a non-res motorist act Hess –specific jurisdiction
every state has a LONG ARM STATUTE- allows state to go after a non-resident, mostly laundry list
long arms-things D can do to be subject to jurisdiction (enter contract, business)
EXAM CLASSIC: Test w/ statute saying: we have jurisdiction of a non-resident who “commits a tort in
this state” Under similar facts courts vary as to whether there was a tortious act
Some Cts say its where the injury took place and others say its where the manufacturing took place
Gray v. American Radiator(1961): defective valve was installed on water heater, causing injury in IL. the
act giving rise to the lawsuit has a “substantial connection” to the state
Analytical framework
1. Find a statute (is there one to allow jurisdiction) (there is NO traditional basis-so has to be a long-arm
statute
2. Lets say MD has a long arm: have jurisdiction over residents that commit a tort in MD.
o -some courts: tort is where the injury occurred
o -other courts: not met b/c the tort is where the thing was made (VA)
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o
ARGUE BOTH
3. Would jurisdiction be constitutional in MD? (Int’l Shoe)
1. IS there a relevant conduct btwn D and MD- was there purposeful availment?
Look for Facts! Isn’t it just like WWVW? What if there are other facts?
a) No one knows where the line is drawn- ARGUE BOTH WAYS ASSESS EVERY FACT!
4. Foreseeability- argue on facts both ways and come to a reasonable conclusion
5. Relatedness- specific jurisdiction or general?
- specific—if D has a contact in MD then suit arises directly from it
6. Fairness- does it comport with fair play and substantial justice- BURDEN ON D
1. Is the inconvenience on the D? (neighboring state-hardly a burden) BBK
2. State’s interest
3. Ps interest
4. Efficiency
5. Shared subst. policies
RULE 4 K- such service is proper if Fed court can rely on state long arm statute where Fed courts sit
(actual location) . Then, the court is subject to all of the same constitutional restrictions.
o
Therefore, the territorial jurisdiction of state courts is the same since they rely on the same long
arm statute as the state court and is held to the same constitutional constraints
CITIZENSHIP 1. Domicile 2. place of incorporation
CONSENT 1. by Contract 2. by waiver (Rule 12) (Ins. Corp of Ireland v. Des Bauxites)
MIN CONTACTS + not unduly burdensome (does this Asahi two part test survive?-McIntyre doesn’t
address)
DECIDING MIN CONTACTS
 Purposeful affiliation-intentionality
 Quantity of contacts
 Continuous-sporadic
 Degree of benefit
 Relatedness
(Secondary) REASONABLENESS FACTORS (Brennan-minority would want these to add up)
 P’s interest
 Forum’s interest (safety of highways)
 Choice of Law
 Evidence-effect on judgment
NECESSITY
 civil status (marriage) –fugitive spouse
 title to property –assume jurisdiction for everyone in an effort to resolve the dispute
PHYSICAL SERVICE w/in FORUM
REASONS
 burden on D
 interstate federalism
 fairness
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secondary factors
political consent
What is fairness?
 same as burden on D?
 same as rxableness and some secondary factors ?
B. In Rem and Quasi in Rem: jurisdiction over D’s property (always prefer in personam)
In rem: The dispute is about who owns that property
Quasi in rem: QIR the dispute has nothing to do with the ownership of the property
attachment: property is attached solely as a reason for obtaining jurisdiction –attach a non residents land
even if it has nothing to do with the land itself
Pennoyer- initial case was breach of contract, so he attached Neff’s property and proceeded quasi in
rem—underlying dispute had nothing to do with ownership
Pennoyer held that In Rem and Quasi in Rem is ok if the property is attached at the outset of the case
Today:
1. Have a statute: an attachment statute (we can seize property that D owns or claims to own)
2. Constitutional test:
a. Schaeffer v. Heitner- seizing prop at the outset is not enough. D must in addition meet
International Shoe
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II. NOTICE
A. Service of Process. Fed Rule 4 (FRCP 4- for fed cts and states have their own)
1. Process consists of a summons (symbol of gov’t power) and a copy of the complaint: contents of
summons in 4a1
2. Service can be made by any non-party who is at least age 18 4c2
3. Long arm statute allows service of process anywhere in the US
4. How to serve an individual? 4e2 alternatives
a. Personal service- hand the papers to D anywhere
b. Substituted servicei. must be at the Ds dwelling or usual abode
ii. Serve someone of suitable age and discretion who resides there (the butler, but
not the babysitter, but temporary au pair for 6 mos yes)
c. Service on the D’s agent (sometimes appointed by law- non resident motorist ect)
d. 4e1- allow methods permitted by state law (where Fed ct sits, or state where service to be
effected) (ex. Service by mail allowed under most state law)
4. 4H1 Service of Process of a business: an officer or managing or general agent (sufficient
responsibility to expect her to transmit impt papers)
5. Waiver of Service 4d: not service by mail but waiver by mail
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Send the process and waiver form, to waive formal service and P files it.
If she doesn’t have a good reason for waiver, process will be served and she will have to pay
for it.
B. The Constitutional Standard
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Mullane - notice must be reasonably calculated under all the circumstances to apprise the party of
the proceeding
All of the methods under Rule 4 meet the constitutional test even if D doesn’t get it (ex: serve
process on wife and puts it in the shredder)
Flag Jones v. Flowers: if you become aware that D hasn’t gotten it, you may have to try other steps
(state kept mailing cert. letters to D, and they kept getting returned, knew he wasn’t getting
notice)
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III. SUBJECT MATTER JURISIDICTION –SMJ
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SMJ: what could do we go to in PA? Are we going to State Court or are we going to Federal Court?
Personal jurisdiction: over parties
SMJ: over claims
Federal Courts have limited SMJ (Article III)
A. Diversity of Citizenship
B. Federal Question
a. States and Fed courts may have concurrent jurisdiction
b. Very few areas are exclusively for federal ?-bankruptcy, admiralty, patent, copyright
If you meet one of these two you may go to Fed Court
State Courts
 Can hear any kind of case at all.
 One exception: some Fed ? cases must be brought in fed court (few: bankruptcy, patent
infringement)
A. Diversity of Citizenship – 1332a1 of the Judicial Code (statute)
Requirements: 1. Case between citizens of diff states 2. Amount > 75K
1. Case between citizens of different states
1. Know complete diversity rule: No diversity if any P is a citizen of the same state of any D
2. All of the plaintiffs must be diverse from all of the defendants (Complete Diversity Rule,
Strawbridge) –if local D is not found liable other D gets no protections
1. Citizenship of a natural person: Citizen of the state where domiciled Mas v. Peery
i. Est. domicile: physical presence
ii. Form the intent to make it your permanent home
iii. Only have one domicile at a time and you always have one
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1332 a2: alienage—citizen of a different co. is a test not domicile -Danger of local bias
against aliens, and state courts might resolve cases in a way that might offend a foreign
nation.
1332-administrators of an estate in a suit are technically citizens of the decedent
Alien v. Alien? Const. doesn’t allow based on the 9 cases allowed in federal court
Citizenship of a Corporation ; 1332c1: can have two places
i.
State where incorporated AND
ii.
Citizen of the one state where it has its principal place of business (ppb)
a. Test: Hertz Corp: The nerve center: The PPB is where the managers direct,
control, and coordinate corporate activities (before Hertz was a split)
iii.
Citizenship of a non incorp business- no statute: Look to citizenship of all the
members ex: lawfirm has partners with citizenship of 15 states, partnership can
be citizen of 15 states, and teamsteers cannot be sued in Fed court)
3. The amount in controversy exceeds 75K
1. Must exceed 75K to a legal certainty (irrelevant want the ultimate reward is)
2. Ps claim governs unless it is clear to a legal certainty that she can’t recover more than 75K
(ex: statutory ceiling on recovery, but hard to predict pain and suffering eg)
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3. Aggregation: when add two or more claims to get over 75K
i. Rule: aggregate P’s claims if there is one P vs. one D (do not have to be related
claims, can be a tort and a breach)
ii. Rule: cannot aggregate if there are multiple parties on either side 2 Ps each with
their own claims sue a single Defendant. Two claims for 40K)
iii. Rule: with a joint claim use the total value of the claim and the number of
parties is irrelevant- not personal injury
Hypo: Joint tortfeasors beat one person up, and total damages is 76K, it is ok b/c any one
of them could be liable for the full amount.
JUDGE MADE EXCEPTIONS
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Even if complete Diversity and more than 75K can fall outside due to the domestic
relations and probate exceptions (not in the statute)
Law that governs the relation of the members of the family has been governed by
state law and administered by state courts (even special courts Family Law)
B. Federal Question Cases: (FQ) 1331--Citizenship and amt in controversy irrelevant
Test: Claim must arise under federal law
 Well Pleaded Complaint Rule: Look only at the claim and ignore the extraneous Motley
Is the P enforcing a Federal Right?
o If Yes—Fed Ct
o If no- not an FQ
MOTTLEY RULE: Federal defenses nor federal counter claims give rise to federal subject matter
jurisdictions: for state law claim does not subject it to federal jurisdiction---could make a case down the
line
C. Supplemental Jurisdiction
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For every claim in federal court there must be Fed SMJ (incl. cross claims ect)
What if additional claims doesn’t meet Fed Q or Diversity?
Try supplemental jurisdiction 1367: lets a federal Ct hear a non-diversity non-fed claim once a case is
already in Federal Court
Mineworkers v. Gibbs: one P, one D, two claims 1. Federal labor law 2. State law claim
1. P(TN) ---------------------FQ (violate Fed labor law)----------- D (TN)
2. P ---------------------------State Law -----------------------------
Both arose from same dispute
1. Yes Fed Ct
2. No diversity, no FQ BUT there is supplemental jurisdiction
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Why?
Gibbs Ok if claim 2 and claim 1 share a common nucleus of operative fact (same overall dispute)
Gibbs is always met if claim arise from same transaction or occurrence T/O
Now codified: 1367
1. Does 1367 a grant jurisdiction? Yes if it meets Gibbs
2. Does 1367 b take it away? (read the rule!)
a. ONLY APPLIES TO CASED BROUGHT INTO FED CT IN DIVERSITY CASES
b. Only applies to some claims by PLAINTIFF
c. If defendant was joined under Rule 14, 19, 20, or 24, no supplemental jurisdiction
i. No supp juris for claims against TPD by P
d. If plaintiff joined, analyze under Exxon(Rule 20, 23 plaintiffs okay as long as one member
meets diversity)
e. Exxon when one claim has amt in controversy and any other claim from common nucleus
of fact.
3. does not extend to claims by Ps to persons made parties under various joinder rules
4. 1367 c) supplemental jurisdiction is discretionary-claims that would otherwise be ineligible but
are made permissible by the statute. The trial judge can decide whether or not to take jurisdiction
of the claim (most do—makes sense to decide factually related claims not just the anchor)
a. Exxon: Parties joined under Rule 20 do not contaminate the case nor 23b for class actions
b. Exceptional circum , justice requires, permissible
Ancillary
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P sues D in fed ct. D has a counterclaim that is a state law claim
Citizens of same state
-ancillary extends to counter claims
P sued D1 and D2 in same state—cross claims like counterclaims qualify for ancillary as long
as arises out of the same transaction or occurrence
Prevents having to sue in different courts for counter claims and cross claims
Pendent party –most controversial
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P has fed claim against D1
P has state claim against D2
no diversity but two claims are factually related
-SC usually says no---by definition state law claim through non diverse parties –two different courts
have to be used –draw the line at expanding supplemental juris
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D. Removal Jurisdiction –allows a DEFENDANT to have a case filed in state ct transferred to fed ct
1441, 1446, 1447
1. It is removable if the case meets Fed SMJ: Removal in fed? Cases same as original: does it arise
under federal law? If so it can be removed
2. EXCEPTION: Cannot remove a diversity case if any D is a citizen of the forum state (doesn’t
apply to FQ cases)
3. All Ds must agree
4. Must remove within 30 days from service of the document that first makes the case removable (ie
notice that the party ruining diversity settled)
5. Remove only to the Fed. District that embraces the state court where it was filed (built in venue
rule ex: St Louis—ED MO)
6. A federal counterclaim (or defense) does not make the case eligible (should’ve sued first buddy)
Shamrock Oil & Gas Corp. v Sheets USSC 1941
1441- Borough of W. Mifflin
Class Actions: CAFA- Class Action Fairness Act 2005
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Class actions can be brought in Fed court but States have their own rules—found some states
were more sympathetic to Ps—so Ps favored bringing in some State Districts
Expanded scope of original diversity jurisdiction
Minimum diversity: Only one of the Ds has to be citizen of a different state than P (ie P NY, DNY,
DFL). Between adverse parties . Citizenship of P = class , can be changed a lot in CA
Case can be removed if any one D wants to remove it
Fact that one or more of Ds are citizens of the forum state doesn’t prevent removal in diversity
cases
USC1446 Procedure for Removal diversity cases have to be requested to be removed within a year—
not relevant for federal question cases
Variations: CMU v. Cohill USSC 1988—District Court has discreation ot remand supplemental state claims
after determing that retaining jurisdiction over the case would be inappropriate
1367(c) US District Court’s discretion to remand
Diversity cases complicate things:
 Can remove only if complete diversity and amount in controversy requirement is met
 Cannot remove if any of the Ds are citizens of the forum
EX: FL P to NYD1 and CAD2---cannot be removed to Fed in NY
West Mifflin: 1. Nothing in 1367 c authorizes a district court to decline over which it has original
jurisdiction 2. 1367c cannot legitimately be invoked to affirm even the district court’s remand of the state
claims.
 In removal cases, venue is always proper—D’s decision to remove is treated as consent
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If venue is proper over the anchor claim that brings the case into Fed Ct, venue is also proper
under the supplemental jurisdiction rule
IV. VENUE
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SMJ tells us we can go to Fed Ct. Venue tells us where P can bring the claim
Co- Ds, counterclaims, TPD not subject to venue claims: exception—subject to all others
Rule 19b party can still object to venue though
Idea is that if venue proper in original claim it would be for others
A. Basic Provisions-if P applies for Fed Ct (not for removal) 1391 a &1391b
1391a- Diversity cases choices
1391b-Fed Q
1&2 for both are identical
1. Law venue in any district where one D resides if all defendants reside in the same state
a. If all Ds reside in the same state you can lay venue where any one of them reside.
b. Resides: reside in the district where you are domiciled
c. 1391c-businesses reside-in all districts where subject to PJ
--OR-2. Any district where the substantial part of the claim arose
 1391a3 and 1391b3 rarely apply-only come up if there is no district in the US that meet
1391a 1-2 or 1391 b1-2
 Diversity: Determine residence? Statute doesn’t define it, but many courts use domicile same
as defining citizenship in diversity cases (implies only one residence)
 Other Courts have said, Congress didn’t use domicile on purpose and should put it in ordinary
meaning. Possible to have more than one residence
 Corporations: subject to any judicial district that is subject to personal jurisdiction (minimum
contacts) if the judicial district was a state
 In a state with multiple districts the court must have min contacts with the district
B. Transfer of Venue- transfer case from one fed district to another fed district.
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Transferor-original federal court, Transferee-to which it transfers
UNDER BOTH STATUTES, THE TRANSFEREE MUST BE A PROPER VENUE AND HAVE PJ OVER
THE D.
both have to be true independently—no waiver allowed
1404a, 1406a
1404-applies when the transferor is a proper venue (2nd location also proper)
 Where can you transfer the case to under 1404? Hoffman only where the P could’ve brought
the lawsuit properly in the first place
28 USC 1406- improper (transfer from improper-proper venue) (statute of limitations cases won’t
bar transfers)
 Improper venue may be waived also if D finds it more convenient
1404: Original venue is proper but can transfer based on
 Convenience for the parties and witnesses and
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The interest of justice
Looking to see if the other court is the center of gravity(the other place makes more sensewitnesses, stuff is there)
 Public and private factors –what makes more sense, what law applies ect
 Totally discretionary
1406-gives choice: Transfer to proper venue or Dismiss - venue in original FED CT is improperonly substantially important when SOL Ferins
28 USC 1407- proper: Panel on multidistrict litigation: decides whether or not to transfer cases to a
venue –consolidate them to
 Standards: convenience of parties and witnesses & promote just and efficient process
 Impt: the degree of which common question of facts are shared by the Ps (ex: pharma
sometimes don’t share all of the factual issues)
 Venue is H1 defense- so can easily be waived
 Use choice of law rules in original forum for state cases when there is a transfer: Van
Dusen Rule: Law applicable to the transferor follows the transfer
C. Forum Non Convenes : a court dismisses because there is another court that makes more sense
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Must be a forum open to the P- must be avail remedy in the other place (SOL, SMJ)
Args for FNC: Events giving rise to the claim is somewhere else, ppl affected, evidence, mnfr of
plane, which law is likely to apply
Why dismiss?—Transfer is impossible (transfer is in a different judicial system)
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State Ct of AL to State Court of KS---No can do!
Usually comes up when ctr of gravity court is in a foreign co.
Piper Aircraft v. Reno- plane crash in Scotland, pilot, passengers was Scottish but the plane
was manfr in the US. Ended up in Fed Cts in Mid Dist. Of PA. USSC said district court
should dismiss under forum non convenes regardless if they would recover less.
Pro Defendant-foreign countries often don’t allow punitive or for Ps to recover as much.
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VI. The Eerie Doctrine (1938)
Federal Ct under Diversity—Look for:
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Fed judge must decide an issue
Question is must she apply state law?
RULE: If the issue is a matter of substantive law, judge has to go with state law
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Eerie: Required by the Rules of Decision Act, and also required by the Constitution (10th Amendstates retain powers not expressly given to the Fed gov’t)
 How do we know if something is substantive? (ex. Eerie involved the element of a claim—always
substantive- define liability)
 Start by looking at Hannah—two separate doctrines: Hannah and Eerie
Hannah prong:
1. Is there a federal law on point that directly conflicts with state law? (FRCP, Fed statute)
2. If Yes—apply the federal law (as long as its valid-supremacy clause)
Test validity on the REA (rules enabling act 2072):
Eerie prong (when there is no federal directive on point)
If it’s a matter of substance judge must follow state law…how do we know? Find out Transgrud’s theory of
Eerie
1. Outcome determinative- Guarantee Trust (under the statute SOL he couldn’t file and filed in Fed Ct
under diversity. Could the Fed Judge ignore state SOL? No. It is substantive b/c it is outcome
determinative. Not clear how its limited
2. Balance the interest- Byrd v. Blueridge- issue of state law decided by the judge not the jury. No
federal directive, pure eerie. If something is not clearly substantive still follow state law unless the
federal court system has interest in doing it differently. Fed interest outweighed it, but no
limitiations
3. Twin Aims of Eerie- AVOID: 1) forum shopping 2) inequitable administration of law . To apply
ask question when case is filed: If the Fed judge ignores the state law, will it cause parties to flock
to federal court?
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VI. PLEADINGS: claims defense
Rule 3,7,8,9, 12(e), 84
A. Complaint
Generally:
#3: A civil action is commenced by filing a complaint with the court
#7: a) Pleadings allowed: complaint, answer to a complaint, ect
b) Motions and other papers 1) general: a request for a court order must be made by
motion –a) be in writing unless made during a hearing or tiral b) state with particularity
the groudns for seeking the order and c) state relief sought 2) Form
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Only one pre answer motion allowed
1. 8A requirements
1. Statement of subject matter jurisdiction
2. Short and plain statement of the claim Twombly, Iqbal
3. Remedy: Make a demand for relief
Notice pleading- federal rules have avoided the word facts and making them claim facts, just
for giving notice.
Changes: Twombly, Iqbal—higher pleading standard
2. Judging a claim under rules of Twombly, Iqbal
1. Court will ignore conclusions of law
2. Plaintiff must plead facts supporting a plausible claim (not enough to be possible)
3. Court will use its own experience and common sense
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By imposing a fact-intensive standard at the 12(b)(6) stage, Iqbal threatens to prevent plaintiffs
from accessing discovery in the first place
Twombly retires Conley where courts at the 12(b)(6) stage merely took a quick look at the
complaint to determine if the plaintiff could prove some set of facts entitling him to relief.
assume what’s alleged in the complaint and reasonable inferences from the complaint is true
Sorema
Some courts require defense to meet same standard of Twombly and Iqubal
o Plausibility justified by “show” lang in Rule 8
o Not for affirmative defesnes expressly in Rule 8 so some courts say no basis for plausibility
standard
3. Rule 9b, 9g- certain times to plead in greater detail
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9b- allegations of fraud or mistake must be made with particularity
9g- special damage must be made with specifity
4. 54 (c): Demand for judgment: relief to be granted-default judgment msut not differ from
what is demanded in the pleadings. Every other judgment should grant what is entitled even if
not pleaded
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What is an acceptable complaint? Federal
1) Caption-Court, what type of pleading, title (if its complex or going to receive attention—
write an overview)
2) Jurisdictional statement – basis for jurisdiction
3) Parties – who the people are
4) Background of facts
5) Series of Counts –I-Negligence, II-strict liability
6) Wherefore-remedy
RULE 11- signatures and sanctions
 SANCTIONS ARE ALWAYS A SEPARATE MOTION
 Every pleading, motion, paper must be signed- but sanctions need some kind of misconduct
 Sanctions, rules on misrepresentation of pleadings, motions to the court
 Motion for Sanction: challenged paper is withdrawn or appropriately corrected withing 21 days
after service under Rule 5
 Formed pleading ect. after inquiry reasonable under circumstances—11b-factual contention
warranted on evidence or are rxably based on belief or lack of info
B. The Defendant’s Response: Rule 12
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Respond in 21 days
Choices: respond by motion, or by answer
Rule 12 motions
12e-motion for definite statement (can’t respond to complaint-unintelligible)
o must be filed before filing a responsive pleading –if the court orders a more dfeintie
statement and the order is not obeyed within 14 days after notice, the court may
strike the pleading)
12f-motion to strike (cut out what doesn’t belong in the pleading-ie claim for jury)
i.
RULE 12 b Motions to dismiss-7 defenses raised by motion or by answer
12 b defense:
1.
2.
3.
4.
5.
6.
7.
Subject matter jurisdiction-doesn’t belong in Fed Ct (never waived)
PJ
Venue
Insufficient Process
Insufficient service of process
Failure to state a claim
Failure to join an indispensible party R19
2. Rule 12g and h- read together have strict rules about waiver
Meaning in three rules
1. 12b 2, 3, 4, 5 must be put in your first Rule 12 response (motion or answer) or else they are
waived
2. 12b 6 and 7 can be raised for the first time anytime through trial
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3. 12b 1 can be raised anytime in the case (incl on appeal) –w/o smj it’s unconstitutional
Important notes on Rule 12:
 One motion- unlimited Ds
 Dismissals without prejudice: Dismissal for lack of subject matter jurisdiction or personal
jurisdiction, (its in the wrong court)---P is free to file again in the proper place ---also true of
insufficient process or service of process—
 21 days after answer—can file an amended answer without permission from the judge—BUT, Rule
12 H(1) –an amendment as a matter of course, do not need court’s permission—if you omit an H1
defense from the answer and realize your mistake you have 21 days under 15(a), after that
however its waived
 No action required by judge or P for an amendment
 If motion to dismiss is not on legitimate - sanctioned under Rule 11
 Can assert all of H1 defenses in the answer, not just pre answer motion—just if you’re going to do
pre-answer you are subject to rule 12
 If P files a new complaint, you can assert in your answer to amended answer defenses to new
complaint—can only assert defenses not available at the time you filed your answer
 Post answer motion to dismiss is possible –then the other side can respond and have a hearing
 Answer—serve it on the Plaintiff’s lawer—just give it to them and file the answer with the court—
have 21 days (Rule 6a says which days count)
3. Must haves in an answer
1. 8b: respond to the complaint: admit, deny, or maybe don’t know (only if info not in control)
Failure to deny is an admission (except damages) (must deny all or specifically)
2. Assert affirmative defenses: 8c1 (affirmative D’s raise something new) (SofL, statute frauds)
Can raise defenses in addition to those listed in 8 C. INGRAHAM v. US (1987)
Rule 8c- Responding to a pleading, a party must affirmatively state any avoidance or affirmative
D including assumption of risk, duress, fraud
C. Amendments and Supplemental Pleading: Rule 15
a) Amendments before trial
1. (1)- Amending as a matter of course: a party may amend its pleading once as a matter of
course
a. (A)(B)- within 21 days (allow amendment as a matter of course)
2. 2) post pleading but pre-trial: 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.
b) Amendments during and after trial (still allowed at times, difficult complicated and expensive to
allow the other side to research amendment—otherwise risk of prejudice to the party). Moore v. Moore
c) Relation back—When an amendment to pleading is counted as if in the original pleading: relates back
Beeck v. Aquaslide 1977 Court of Appeals, Krupski v. Costiere USSC 2010, Worthington v. Wilson 1993
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Closer to trial date, more resistant
Common law- you were stuck with your original pleading
Before trial motions to amend should be liberally granted (after 21 day period)
Court can allow extra time for the other side if amendment is a surprise
The standard for whether an amendment should be granted depends on the time at which
Amendment is being sought (above)
C1c- dates back to date of original pleading when it changes party, and if in period provided by
rule 4m—(120 days to serve a summons and a complaint) . Time period of when the proper party
gets notice is withing 120 days within filing of the plea---but under 15c1-120 days after statute
of limitations standard
II. Joinder Rules- define the scope of the case Rules: 14- 24
a.
b.
c.
d.
e.
f.
Encourage and permit complex joinder and Rule 23 allows class action
With qualifications, allow the liberal joinder of parties
Allow multiple ps to sue a single, Multiple Ps to Ds, counterclaims, cross-claims
After every single claim where there is a joinder has to have PJ or SMJ
Must bring a summons and complaint to a new party
Misjoinder is never grounds for dismissing a claim (court can sever) 21
A. Claimed Joinder by the Plaintiff- Rule 18A:
1.
2.
3.
4.
Allows unrestricted joinder of claims
No restriction on joining claims against the same party
P can join any claim she has against D (No restriction on joining claims against same party)
Then have to assess Subject Matter Jurisdiction- can it get into Fed Court
B. Claimed Joinder by the Defendant-D asserting a claim (suing someone)
1. Counterclaim-asserted against an opposing party
a) Compulsory 13A- arises from same transaction or occurrence T/O of the plaintiff’s claim. Must
assert that claim or you lose that claim. ONLY COMPULSORY CLAIM IN THE WORLD
b) Permissive-13B any counterclaim that’s not compulsory-not arising from same T/O.
EVERY CLAIM MUST ASSESS SMJ!
 If compulsory allowed under Gibbs 1367(a)(from same transaction or occurrence and Gibbs is
braoder
 but does 1367 (b) take it away? Applies to diversity cases and only takes away supplemental
jurisdiction from claims by plaintiffs
Hypos walk through: Compulsory DiversityFederal ?--> 1367 a and 1367b
Never say supplemental j (1367 a-b) until go through diversity or federal Question
2. Crossclaim- 13g claim against a co-party and must rise from the same T/O as the underlying case.
Never compulsory. Can bring a pre-answer motion instead of answering if faced
Compulsory counterclaim is the only mandatory claim.
Hypo: 3 persons driving, three way class, assume every claim is for more than $75
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Compulsory counterclaims always meet Gibbs-1367
A (VA) sues B (NY)
C (NY)
Every claim more than 75K
What claims can we assert for C
1) C should file a compulsory counterclaim against A—arises from the same occurrence, have to
assert or lose the claim.
2) That invokes diversity
3) C may assert a cross-claim against B- co parties and same T/O- ok under 13g
4) But now no diversity! NY-NY
5) Check supplemental jurisdiction : 1367a cross claims from same T/O. 1367b- Its ok b/c these
two are Ds
RULE 20
Joinder of parties: each claim has to be factually related
Law of Claim preclusion (not same as joinder)
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Not mandatory, but Res Judicata has the effect of making it mandatory to bring all transactionally
related claims
Must seek all the legal conclusions, remedies, that arise from the same occurrence—if has
property and Personal Injury damages he has to sue it in the first lawsuit—can split remedies or
damages
Must assert all of the available legal theories—if you sue the mfr and assert N claim, you’ll be
precluded to bring aother suit on a SL- Can’t bring multiple lawsuit out of the same T/O
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C. Proper Parties- RULE 20A
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i. Co-Plaintiffs 20a1.
1. May join together in a claim if from same T/O.
2. They raise at least one common question or are factually related.
Ps can proceed on different theories and claim for different relief with multiple Ps and Ds
ii. Co-Defendants (20a2)- same test
THEN MUST ASSESS SMJ- can the case get into Fed CT
D. Necessary and Indispensible-who must be joined RULE 19
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What do we do if an important party is not sued at the start of the law suit?
This happens when: diversity jurisdiction would be lost 2) the court lacks PJ, or 3) the impt
party enjoys sovereign immunity.
A- non party- absentee who is necessary can be forced into the case
Steps: Is A necessary or required? Yes if meet ANY of three tests 19a1 b: should go through all
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Without A the court cannot accord complete relief among the parties (efficiency)
The absentee’s interest may be harmed if she is not joined *19a1b1
The absentee’s interest may subject the Defendant to a risk of multiple or inconsistent
obligations *19a1b2
Joint tortfeasors are never necessary Temple
Hypo: 1,000 shares in XYZ corp. Freer claims we bought it together and paid half the purchase price and
we agree to own it jointly. Ask corp to reissue stock. Freer suing corp. do they need me?
1. without you court cannot accord complete relief? --y—if corp cancels stock I would bring another suit
 absentee’s interest may be harmed
 The D (corp) could get hit with multiple inconsistent obligations—we both win?
2. Is joinder of the absentee feasible? Must be feasible to join 19b
 need pj
 won’t destroy diversity –SMJ, Venue
c) if not a and b, court can either proceed without the absentee or dismiss the entire case -19b
 4th factor in 19b: should not dismiss the case unless P has an alternative forum
 If the Court dismisses we call the absentee indespensible 12b7-motion to dismiss indespensible
party.
INTERPLEADER: 1335 USSC
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It allows a plaintiff to initiate a lawsuit in order to compel two or more other parties to litigate a
dispute. An interpleader action originates when the plaintiff holds property on behalf of another,
but does not know to whom the property should be transferred. Eg Pan American Fire and Gas
interpleader is proper not to protect the liability carrier for Trial judge under Rule 42 can severe
claims if appropriate if things get too complicated or some other reason
minimal diversity- one P differs from one D and $500 in controversy
E. Impleader: RULE 14
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A derivative suit from an anchor claim (14a1)
A defending party (Can be a P hit with a cross claim) joins a new party. Third Party Defendant
(TPD).
The TPD maybe liable to the Defending party for the Ps claim
Usually for indemnity or contribution-deflect you liability for another
2 joint tortfeasors- P sues one of the joint tortfeasors
TPD (NOT A CROSS CLAIM!)
P------- D
Rule 14 gives two more claims to be asserted
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Under Rule 14a- P can assert a claim against TPD as long as its derivative from Defendant’s claim and TPD
can assert a claim against P
THEN- Assess SMJ! Can’t use supplemental unless the anchor claim is a federal claim. If its diversity cant
use Supp Juris
F. INTERVENTION-RULE 24-A non-party brings herself in choosing which side to be on.
1. Once a person intervenes they enjoy all of the rights an original party would have
2. Motions to intervene are liberally granted when the intervening party has a legit interest in the
outcome of the case
3. Smuck v. Hobson-DC de-segregation
1. Show not adequately represented (school board didn’t appeal)
2. Make application to intervene in a timely way (wasn’t until SB decided not to appeal that they
realized their interests weren’t represented-seemingly same interests at the beginning)
2 Types: both must be timely
1. Intervention of right- 24a2: absentee A has a right to intervene if her interests may be harmed if
she doesn’t come in –same rules as “necessary parties”
a. Court could rule that this person is a 19a party- destroy diversity
2. Permissive intervention-24b2: the absentee A has to show that her claim or defense and the
pending case have at least one common question
a. If they destroy diversity they can’t join
EITHER WAY MUST ASSESS SMJ
G. The Class Action : the rep sues on behalf of a group
1. The Prerequisites: 23a
a. Numerosity (there must be too many for practicable joinder)
b. There must be commonality: Question of law, facts Walmart v. Dukes: class failed to meet
commonality requirement (1.5 mill discrimination)
c. Representative suffer same kind of harm as class members
i. Class representative has to be a member of the class (ie trade assoc. not qualify)
ii. Rep will adequately rep interests of the class
d. Class must be identifiable and adequately defined (degree of specificity depends upon the
remedy being sought
e. Typicality- similar claims and defenses
2. Types of class: 23b1, 23b2, 23b3
a. 23b3 –damages class (voluntary)
i. Common questions predominate over individual questions
ii. Show that the class is the superior method for resolving the dispute
iii. Mass tort: bus fly off the road- indiv. question about damages. Most impt part is
whether the driver was N. Argue the class action is the best way to handle it
iv. Can have a class action on individual issues
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3.
4.
5.
6.
7.
b. B2- equitable (mandatory) Meant to facilitate ppl coming forward as a group and seek an
injunction against discriminating): Can sue as long as the injunction predominated over
the monetary remedy –most lower courts accept this
c. B1a-incompatible standards (rare) : risk subject to
d. B1b- limited fund: lots of contingent damage claims against a co. with limited funds (early
Ps get everything) (mandatory)
Motion to certify: court blessing for class action- must define the class and appoint class council
(judge)
Notice of pendency:
a. Court must give individual notice to all members reasonably identifiable
b. 23c2b- they are in the class and they are bound if they do not opt out
c. THIS NOTICE IS ONLY REQUIRED IN 23B3
All class members are bound by the judgment except those who opted out of a B3-THERE IS NO
OPT OUT OF A B1 OR B2 (mandatory classes)
Settlement or Dismissal of a certified class- either must be approved by the court Rule 23e
a. Usually give notice and courts get feedback on settlement
Subject Matter Jurisdiction
a. Sometimes a federal question
b. How do you invoke diversity?
i. For citizenship you look only at the rep not the class members
ii. Only need the rep diverse from all the other members
iii. 2005 Allapatah – it is ok if the reps claim exceeds 75K and the class members
claims do not matter
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IX. PRE TRIAL ADJUDICATION
2 motions: 12b6 and summary judgment
A. 12b6- motion to dismiss failure to state a claim (whether any litigation necessary)
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Court cannot look at evidence—only the FACE of the complaint
If all the facts alleged were true, would P win-does the law recognize this
Twombly must plead fact and a plausible claim
Sometimes points out sloppy pleading –can dismiss with leave to amend
B. 56-Motion for Summary Judgment- the court CAN look at evidence (gotten past 12b6)
Standard: The moving party must show (in order to get a trial)
1. On the evidence, there is a genuine dispute on a material fact
2. She is entitled to judgment
ONLY GO TO TRIAL TO RESOLVE DISPUTES OF FACT –parties offer the facts (usually via affadavits-signed
evidence)
Matsushita, Anderson, Cellotex- courts should loosen up and enter summary judgment
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It is ALWAYS DISCRETIONARY
Rare for P to win
Usually tougher in Tort cases than Contracts
Do not weigh or judge affadavits, just needs to be a dispute on a material issue of fact.
XII. Preclusion doctrine- claim and issue preclusion
(Res Judicata and collateral estoppel)
Case 1- went to judgment first—judgment entered
Case 2- pending. Does the judgment in case one preclude the court from litigating anything in case 2? Is
there claim or issue preclusion.
A. CLAIM PRECLUSION –(start here, res judicata)
You have one lawsuit to adjudicate a claim
Three requirements:
Element 1-show that both cases were brought by the same claimant against the same D
Element 2- case 1 ended in a valid final judgment on the merits RULE 41b-all judgments are on the
merits unless they are based on jurisdiction, venue, or indispensible parties
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Element 3- both cases involve the same claim?
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Majority def of claim: a T/O
Minority def of claim: primary rights –you have a different claim for each right invaded
(property vs. body)
Hypo: Lois and Meg driving and they collide. Case 1-Lois sues meg for personal injuries. Case 2: Lois
sues Meg for property damage from the same crash. Do we dismiss case 2 for res judicata?
1. yes its met 2. Final judgment on the merits 3. Same claim in both cases? Split of authority Maj yesminority-she is suing on a different claim
Case 1- Lois sues meg—wins Case 2: Meg sues lois
1) does not meet the first requirement—brought by different claimant against different claimant
2) Case dismissed on COMPULSORY COUNTERCLAIM not RES JUDICATA
B. Issue Preclusion (collateral estoppel)
There was an issue in Case 1, same issue in Case 2—not going to re-litigate the issue. Res judicata can get
rid of the entire case but issue preclusion can at least narrow it.
Issues: X, Y, Z, A and A is answered—next case eliminates A
1.
2.
3.
4.
Case 1 ended on a valid final judgment on the merits
Show that the same issue was actually litigated and decided in case 1 (not from default judgment)
Show that that issue was essential to the judgment in case 1
Against whom is preclusion used? Can only be used against somebody who is a party to case 1
(includes privity-classaction) Req. by DP
5. By whom is it used—
a. mutuality rule—(rejected in some jurisdictions) Can only use this if you were a party to
case 1
b. Non mutual issue preclusion – (alt. to mutuality rule) Used by someone who was not a
party in case 1
i. Non mutual defensive issue preclusion/collateral estoppel- the person using CE or
IE in case 2 was not a party in case one, and is a D in case two
Hypo: own a car, and have a roommate. Roommate borrows your car—VL for what the roommate does.
Roommate collides with another. Case1: Freer sues roomie—D wins—Freer was N Case 2: Freer sues
auto owner ---no claim preclusion different claimants
Is there Issue preclusion or IE
1)
2)
3)
4)
5)
valid final judgment on merits- yes
Yes- same issue litigated
Issue was esstential to the judgement- Yes
Yes- against a party to case 1
By whom is it being used—non mutual—auto owner is not a party to case 1—today majority
allows it as long as the D had a full chance to litigate in case 1