CivPro AttackOutline

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Personal Jurisdiction
Waived unless raised by motion before answering or in the initial answer 12(g)(2), (h)(1)
The 14th amendment forbids the states from depriving any “person of life, liberty or property, without due
process of law.” A state would violate this guarantee if its courts entered judgments against ∆s without
following a fair judicial procedure.
General Jurisdiction: ∆ relationship with the forum justifies jurisdiction over him based on any claim,
even one unrelated to the forum
Specific Jurisdiction: Connection between the forum and the acts of non-resident ∆ generate the
controversy. Claim arises in the state, so ∆ amenable to jurisdiction. Much less contacts with the forum
-domicile
-served process
-Consent Hess v. Pawloski (Scotus 1927 – Drive By PJ) Court upholds Constitutionality of MA statute that says PJ can
be acquired by implied consent of party driving through the state. MVA registrar is appointed as your agent for
receiving notice
-Systematic & Continuous
-Specific Jurisdiction (minimum contacts)
Specific Jurisdiction:
1. International Shoe- Minimum Contacts Test
a. Minimum Contacts analysis is based on the premises that the parties who conduct activities in a
state accept the risk that those activities will give rise to lawsuits and understand that they may
have to return to the state where the activity was conducted to defend such lawsuits.
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∆ has no contacts with FS= State has no authority to exercise PJ unless ∆ consents
Casual or isolated contacts with FS = NO PJ
Some Single acts b/c of “quality & nature” = Specific PJ (juris over claims arising out of that
single act)
Continuous but limited activity in FS= Specific PJ Example: ongoing business relationship
2. “Quality & Nature” of contacts test = Purposeful Availment
a. ∆ must have made a deliberate choice to relate to the state in some meaningful way
i. Ex: WWV- the NY Audi dealer did not purposefully avail itself to Oklahoma
b. Is purposeful availment satisfied when ∆s goods reach the FS through stream of commerce?
i. Asahi Court:
1. O’Connor= requires clearer evidence that the ∆ seeks to serve the market in the
particular state. Evidence such as designing the pproduct for that market or
advertising there
2. Concurring justices= sending goods into the stream of commerce, in substantial
quantities constitutes purposeful availment
ii. J. McIntyre v. Nicastro= ∆ McIntyre made a metal shredding machine in England sold to
distributor in US, which resold to NJ; π hurt in NJ & sues ∆ there
1. SCOTUS: McIntyre’s contacts in NJ do not support specific Jurisdiction
After minimum contacts that give rise to the claim are established, then one must decide if exercising PJ would
comport to “fair play and substantial justice”:
 -Interests of the forum state in providing redress to it’s citizens
 -Interest of the π in obtaining relief in a convenient forum
 -Interests of the states in enforcing their substantive law or policy
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 -Extent of inconvenience to the ∆ if she is forced to defend away from home
Take-A-Ways:
 If foreign manufacturer sells to a distributor in USA, if a claim arises in the state where the distributor is
located it will be subject to PJ but not to other states
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If foreign manufacturer promotes its goods in a specific state it will be subject to PJ
PERSONAL JURISDICTION ATTACK STRATEGY:
 Does a traditional bases generate jurisdiction?
PEOPLE: served with process, domiciliary, consent
CORPORATION: incorporated, doing business, consent
 Does a long arm statute generate jurisdiction?
 If yes to either of first two questions, is it constitutional? (certain
minimum contacts so that maintenance of suit does not offend traditional
notions of fair play and substantial justice)
CONTACTS:
1. measured for general jurisdiction – enough contacts that any claim
can be litigated there
2. measured for specific jurisdiction – does claim arise out of
controversy> number? Claim relatedness? Did D initiate contacts?
Stream of commerce?
FAIRNESS: (use checklist above)
Even if a state LA statute allows the exercise of PJ still must follow min. contacts test & fair play to see if
this exercise is con
Challenging PJ:
-Special Appearance
-Ignore the original suit entirely
Subject Matter Jurisdiction
1.
1. Federal Question “Arising Under Federal Law”
a. Must be necessary to prove πs complaint
b. Must be element of πs case in chief
c. Mottley rules:
i. Not enough that π refers to federal law in complaint
ii. Must be a well-pleaded complaint
d. Holmes Creation test:
i. Source of πs enforceable legal right against the ∆ is federal law
e. Grable & sons- State law claims turning on a substantial federal issue
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2. Diversity Jurisdiction [Must meet both requirements]
a. Citizenship= domicile (place you reside with the intent to stay indefinitely)
i. Corporate citizenship (Section 1332)
1. State where principal place of business AND
2. State where incorporated
b. Amount in Controversy $75K+
i. Πs good faith claim for amount in controversy controls unless it appears to a legal
certainty that the claim is really for less St Paul Mercury Indemnity Co. v Red Cab Co.
ii. Aggregation of Damages
1. A single π can aggregate claims against a single ∆
a. Jon sues Jay for negligence for $50K and personal injuries for $26K
2. A single π CANNOT aggregate claims against multiple ∆s must meet amount
for each
3. If multiple πs as long as ONE π satisfies the amount in controversy, others may
join as co πs even if seeking less, must be against one ∆ and arise out of the
same transaction Exxon Mobil Corp. V. Allapattah Services
Removal 28 USC 1441
 Π chooses forum
 ∆ may remove case to federal court if π could’ve brought the case in federal court
 Removal authorizes transfer from state court system to federal court system
 If ∆ is sued in his home state he can NOT remove (b)(2)
 Only can be moved to a federal district court in that state
Venue 28 USC 1391
 A district in which any ∆ resides, if all live in same state
 A district in which a substantial part of the events took place
 If not above, then any judicial district in which any ∆ is subject to PJ
 (c) a corporate ∆ resides in every district in which it is subject to PJ
Venue may be waived by the ∆, if ∆ fails to raise objection to venue in complaint 12(h)(1)
Forum selection clauses contained in contracts
Transfer of Venue
1. §1404—change when venue proper
a. For convenience of parties and witnesses, in the interest of justice, a district court may
transfer action to any other district where the action might have been brought.
b. codification of forum non conveniens
3. §1406—change when venue improper
a. When an action is brought in the wrong district, the district court may dismiss, or if it is
in the interests of justice, transfer such case to any district where the action could have
been brought.
b. Dismiss = to state court
c. Transfer = to another federal court
How to approach a venue question on the exam:
Start w/ state court:
1. What is the state law regarding venue?
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2. Would  want to remove to federal court under §1441?
a. SMJ analysis
(1) Diversity jurisdiction
(2) Federal question
b. If SMJ is OK, remove from state court to the federal court in the district where the state court sits
3. Once in the federal system, look for possible transfers. Was venue proper in the first place?
a. If yes, §1404
b. If no, §1406 = dismiss or transfer
4. Forum non conveniens argument when
a. transfer from federal to foreign forum
b. making a transfer “ in the interests of justice” under §1404
When do you use ForumNonConveniens?
- When parties are going from a federal to a foreign forum
- When using 1404, you’re arguing that suit should be heard somewhere else in the interests of justice.
Supplemental Jurisdiction 28 U.S.C. §1367,allows claims that could not have entered federal court on their
own to be heard by a federal court if they are part of a case over which the court has subject matter jurisdiction.
Ex: B sues S in federal court (b/c of diversity) for $250k in injuries after a car accident, S's counterclaim against
B for $500 in damages to her car falls within the court's supplemental jurisdiction b/c it is factually related to
B's claim, even though S would not be able to file the $500 suit in federal court on its own (because of amt in
controversy requirement).
§1367(b) bars supplemental jurisdiction where a district court's jurisdiction is "founded solely on §1332," the
diversity statute.
14,19,20,24
In diversity cases only, the federal court will not have supplemental jurisdiction over certain claims by Ps or
persons sought to be joined as Ps,
1367(b) does not apply when the extra parties are brought in by the D
Choice of Law & The Erie Doctrine
The Erie doctrine comes from a case called Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), in which the
SCOTUS held that if a federal court is hearing a state claim because it has diversity jurisdiction, the substantive
common law of the state applies. The federal judges must be guided by state common law, the decisions of state
law judges, and state practice, and may not create federal common law.
The purpose of the Erie doctrine is to insure that, in all cases where a federal court is exercising jurisdiction
solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court
should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if
tried in a state court. In this way, plaintiffs are deterred from "forum shopping", πs choose a forum based upon
where they predict a more favorable outcome.
FRCP 15(c): Relation Back Doctrine: If the plaintiff seeks to amend the complaint after the statute of limitations would have run
on the claim, the plaintiff can amend the complaint if it “relates back” to the date of filing of the original complaint. The amended
claim will be allowed if the claim in the amended pleading (2) arose out of the same conduct, transaction or occurrence set forth
in the original pleading. (3) If adding a new party, part (2) must be satisfied and new party was aware of the action within 120 days of
the filing, knew or should have known, was not named by mistake.
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Joinder of Parties- Rule 20
 20(a)(1)- πs may sue together if they assert claims that arise out of the same transaction or occurrence &
claim against ∆ will involve a common question of law or fact
 20(a)(2) – π to sue multiple ∆s in a single action if same criteria are met
Counterclaims
 Rule 18 and 13- authorizes parties once properly joined in a lawsuit to assert additional claims against
opposing parties
 Rule 13 authorizes a defending party in a suit to assert claims back against a party who has claimed
against him
o 13(a)- compulsory- out of the same transaction or occurrence
o 13(b) permissive- not related to the original claim
Cross-claims 13(g)
 A cross-claim is a claim asserted by one party against a co-party
 Cross-claims may be asserted if arising out of the same transaction or occurrence as the main claim
Joinder of Claims
 Rule 18(a) a party seeking relief from an opposing party may join with his original claim any addtl
claims (may add completely unrelated claims)
 After someone is impleaded to the suit, the 3rd party π may assert additional claims not related via rule
18(a)
o However, those additional claims must also undergo jurisdiction analyzing
 For example if π v. ∆ and ∆ impleads X, supplemental juris exist over impleaded claim,
but if ∆ makes unrelated claim against X, must pass SMJ criteria
Special joinder of parties
1. Third Party Practice
a. Rule 14 (a)- allows the ∆ to bring an additional person to the suit who may be liable to the ∆ for
all or part of any recovery the π obtains on the main claim
b. 14(a)(2)(D)- third party ∆ (those impleaded) may assert a claim against the main π if it rises out
of the transaction or occurrence as the main claim
c. Considerations for impleader:
i. Whether joining the third party will unduly complicate the action,
ii. Cause delay in deciding the main
iii. Adversely affect the plaintiff, or confuse the jury.
If any of these factors is present, the court may refuse to permit the impleader.
§ 1367(b): Limits on Supplemental Jurisdiction: In diversity suits, the court does not have supplemental
jurisdiction over the plaintiff’s claim against the third party defendant. The court only has supplemental
jurisdiction over the defendant’s claim for injuries against the third party defendant.
Joining Additional ∆s
d. Rule 19 (a) Three step process of joinder if feasible
i. if in person’s absence the court cannot accord complete relief among existing parties
19(a)(1)(A)
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1. cannot adequately provide redress to the parties who are before court w/o joining
absentee
ii. if party has interest and ability to protect that interest will be impaired if not joined 19
(a)(1)(B)(i)
iii. Adjudicating the case w/o the added party might leave one of the existing parties exposed
to multiple or inconsistent obligations 19(a)(1)(B)(ii)
e. Rule 19(b): what to do if absentee should be joined but cannot be
2. Intervention Rule 24
a. Rule 24: allows an absent party who learns of an action to become a party to the litigation
b. Rule 24(a): Circumstances in which a party has a right to become a party to a case
i. Statute authorizes
ii. 24 (a)(2) must meet 3 conditions:
1. Person claims an interest relating to the property or transaction that is the subject
matter of the action
2. Interest may be impaired if the person is not allowed to participate in the case
3. Absentee’s interest is not adequately represented by those already parties to the
action
c. Rule 24(b): Permissive intervention- court may use its discretion to allow a party into suit
Purpose of rule 19 and 24  To allow absentees with important interests to participate in on-going litigation
before the court
Class Actions
FRCP 23(b): Grounds for Class Actions: The class action may be warranted on anyone of the following grounds:
(1): Prejudice From Separate Actions: A class action is permissible if separate actions would result in: (A): Incompatible
standards of conduct for defendant through inconsistent adjudications; OR (B): Substantially impair the interests of other members of
the class.
• No Notice Required or left to discretion of court. • Parties Cannot Opt Out
(2): Equitable Relief Sought as to Rights Held in Common: A class action is permissible if relief to one plaintiff necessarily
affects the whole class. Essentially, declaratory of injunctive relief would benefit the class as a whole.
• Parties Cannot Opt Out
(3): Common Predominant Question: The Catch All Test: Questions of law or fact common to the class predominate over
questions affecting only individual members and a class action is the superior means to adjudicate the controversy. Court considers
(A) Interest of individual members; (B) Nature and extent of any litigation involving the same controversy; (C) Desirability of
consolidating all claims; (D) Difficulties of managing class action. [Causey v. PanAm: Court must compare relative importance of
common questions and individual questions, not just number.]
• Notice Required [Eisen: Individual Notice required to all member who can be identified through reasonable effort.]
• Parties Can Opt Out
3) FRCP(c)(1): Certification: After commencement of an alleged class suit, a hearing should be held to determine whether the
action should proceed as a class suit.
Due Process: Due Process is satisfied and the judgment will be binding on all class members when the interest of the class is
adequately represented during the suit. Though, parties are not bound by decisions in which they are not a party, the exception is class
action suits where res judicata applies to all members of the suit. However, exception to exception is that member of class not bound if
there is no due process.
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Motions
12(b)(6)- ∆ may move to dismiss the πs complaint for failing to state a claim
Does the complaint state a legally sufficient claim?
Assumes alleged facts are true
Summary Judgment 56(a)
Entry of judgment by the court in favor of π or ∆ w/o trial
Appropriate when the evidence before the court demonstrates that there is no disputed issue of material fact to
be tried and that the moving party is entitled to judgment as a matter of law
Judgment as a Matter of Law- Rule 50
 JMOL is decided by the standard of whether a reasonable jury could find in favor of the party opposing
the JMOL motion.
 If there is no evidence to support a reasonable conclusion for the opposing party, the court enters
judgment and the case is over.
 If there is sufficient evidence to make a reasonable conclusion in favor of the opposing party, but there
is equally strong evidence to support an opposite conclusion, the party with the burden of persuasion
fails.
 the motion can only be made once the opposing party has presented its case.
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