I. PLEADING
FEDERAL RULES:
7. Pleadings Allowed; Form of Motions
8. General Rules of Pleading
9. Pleading Special Matters
10. Form of Pleading
11. Signing of Pleadings, Motions, and Other Papers; Reps to Court; Sanctions
12. Defenses and Objections
15. Amended and Supplemental Pleadings
I. STATING A CLAIM- THE COMPLAINT (RULES 7, 8(a)(e)(f), 9(b), 10
A. HISTORY OF PLEADINGS
 Writ system (outgrowth of English system)→ very specific and technical
 Code pleadings system (modification of writ system)→ gave ∆ notice of the facts, cause of action, and relief
 Notice pleadings system→ Most courts have adopted (not CA, MD)
B. MODERN PLEADING SYSTEM
 PURPOSE/ROLE of pleadings:
1. Provide Notice/ID issue
2. Define jurisdictional grounds
3. Standardize procedures
4. Prevent sham claims
5. Guide the parties
6. Narrow the issues→ establish some legal theories and eliminate others (sharpen basis of dispute)
7. Shape discovery→ allegation in pleadings are tempered by burden of proof
 Burden on ∏ to plead all elements of claim and burden on ∆ to plead affirmative defenses
 3 burdens separate but usually related

GOALS of pleadings:
1. Efficiency: deter baseless claims (sanctions, motion to dismiss, motion for SJ)
2. Fairness: make decisions based on merits not technicalities
3. Accuracy
4. Uniformity

Rule 7a: Limits # of documents which can be filed as pleadings:
1. Complaint,
2. Answer,
3. Reply to a counterclaim,
4. An answer to a cross-claim,
5. A third-party complaint, third party answer.
*Pleadings are limited to these documents→ vs. common law pleading which can go back & forth
*Normally pleading process ends with answer, but in some states, ∏ must reply to the defenses
C. THE COMPLAINT→ WRITTEN DOCUMENT SETTING FORTH THE ARGUMENT BY . 1ST STEP IN CIVIL LAWSUIT.
1. BACKGROUND INFORMATION
 Rule 8(a): ↓ standard and is discretionary rule (vs. Rule 9). Requires that the following be stated:
1. Jurisdiction: Recitation of the basis for jurisdiction
2. Statement of Claim: “plaint and simple”
3. Relief/Damages Sought: Demand for the judgment for the relief

POLICY and RATIONALE Behind Rule 8
o Accuracy and fairness: gives ∏ chance to get evidence to prove & ∆ has SJ at anytime to ↑ fairness
o But, does not necessarily uphold efficiency—with lower bar there will be more cases & proceedings
o Gives Notice → low standard requirements
o Create uniformity by setting bar low

Rule 10 (Format)
1. Caption; Introductory statements
2. Jurisdiction statement
3. Description of parties
4. Factual background
5. Counts
6. Signature

OTHER CONSIDERATIONS:
 Rule 8(e)(2)→ a party may state as many claims or defenses as it has regardless of consistency. Theme is
discovery—after letting claims in, ∏ has a chance of discovery. If ∏ had to pick 1 story it would be
inefficient—might have to redo facts.
 Theme is notice
 Come early → stories not clear
 Will eventually need to settle on 1 story
 Rule 10(b) → separate paragraph for each claim
2. SUFFICIENCY OF THE COMPLAINT
 When challenge all facts in complaint are presumed to be true
 Difficulty in deciding how much or how little to include:
o Too much → burden of proof
o Too little → insufficiency and may lose leverage in settlement talks
1. Are all ELEMENTS OF CLAIM alleged (sufficiency of facts)?
 Only need plain and simple statement of claims as long as not fraud or mistake case (Bell; Swierk.)
 Court would usually allow amendment in these instances
 Must evaluate burden of claim (denial v. affirmative defense issue—see chart)
2. Is the theory LEGALLY SUPPORTED (sufficiency of legal theory)?
 Must invoke a body of substantive law that allows for relief→ need not be explicit (Haddle)
Swierkiewicz v. Sorema– ∏ demoted and fired allegedly b/c of his nationality and in violation of Title VII of the Civil Rights Act of
1964 (employment discrimination). ∆ filed a 12(b)(6) motion to dismiss case b/c there was an insufficiency of facts. US Supreme Court
said complaint fulfilled Rule 8 (included nationalities, ages, and described how he was injured). There is no heightened pleading
standard for employment discrimination because there is no fraud or mistake. Pleading not evidentiary standard.
Bell v. Novik Transfer— ∏ filed a tort claim in federal court after removal from MD court. Complaint stated that ∆’s agent drove a truck
that negligently collided with the car in which ∏ was riding. Court found complaint sufficient according to Rule 8 because it contained
a statement and sufficiently stated a cause of action. Rule 12(e) is only appropriate when it is necessary to enable ∆ to respond. Had
the action remained in MD, the state may have regarded the complaint as insufficient because it would be subject to MD’s code pleading.
Haddle v. Garrison- ∏ agreed to cooperate in criminal investigation of ∆ and was then fired for cooperating w/ federal agents. ∏
claimed ∆ violated 42 USC 1985(2)→ ∆s conspired to have him fired from his job for objecting a federal grand jury subpoena. ∆ moved
to dismiss b/c firing from at-will employment does not classify as personal injury (LEGAL INSUFFICIENCY), which is required by 42
USC 1985(2). Split circuits, so Supreme Court decides. District court and circuit court found for ∆, relying on Morast (11th circuit
precedent). Supreme Court, citing a circuit split, found firing from at-will employment suffices for injury to property→ there was
a claim.
II. SPECIAL CLAIMS (RULE 9)
Circumstances determine when a heightened pleading requirement is necessary.
 Rule 9 → Pleading must be more specific in certain circumstances (Fraud, Mistake, Special Damages)
1. More specific particularities
2. Condition of mind

Rationale Behind Heightened Requirements
o For fraud:
1. Reputation→ Allegation vs. ∆ can be harming. Want disincentive to bring these “easy” claims
2. Punitive Damages→ Can be ↑ so raise the bar; this bargaining chip should only be used if viable
o For mistake:
1. B/c you can void a K, need to set standard higher to promote contractual policy. Remedy is drastic
Swierkiewicz v. Sorema– ∏ sued  employer for unlawful termination based on national origin & age. Under notice pleading
syst.,  not required to plead facts to establish a prima facie case. Heightened pleading standard conflicts w/ Rule 8– which applies
to all civil actions w/ limited exceptions in Rule 9. SCOTUS supports very narrow purpose and required information included
in a pleading-- no heightened pleading requirement for employment discrimination.
Stradford v. Zurich—∆ files CC of fraud v. ∏ dentist. Ct. finds that ∆ succeeds in alleging facts that give rise to a strong inference
of fraudulent intent—suspicious timing of ∏’s claim, ∏’s refusal to cooperate with national investigation, size of ∏’s claim.
However, ∆ did not succeed the Rule 9 (b) requirement that the time, place, and nature of the alleged misrepresentations be
disclosed to the party accused of fraud. ∆ fails to identify ∏’s false statements. Purpose of 9(b) is to give accused NOTICE of
the claim and the factual ground upon which it is based. Court allowed amendment of counterclaim.
III. ALLOCATING THE ELEMENTS
1. Burden of pleading—one must allege elements of the claim or defense; deciding this burden will most likely affect
the other burdens.
2. Burden of production—at trial one must produce evidence (docs, witnesses, etc.). If first party produces enough,
then burden is passed on to other side. If first party did not have enough, then second party can say case is done.
3. Burden of persuasion—one must persuade the fact finder that one’s version of the facts is more likely to be true than
the story of the other side. This is the ultimate decider in close cases.
** Typically if the pleading burden is on one party, then the others are too, but not always (Rehnquist in Gomez)
DETERMINING WHO HAS THE BURDEN→ Ct. must think about what Congress would decide if they created statute today
1. Is defense listed in Rule 8(c) or is it similar?
2. What does the language of the statute suggest? Only exception to the rule? Or common part of claim?
3. What was the legislative intent of Congress (to protect ∏/public or ∆)?
4. How have courts typically treated the claim?
5. Who has the knowledge?
Gomez v. Toledo: ∏ appealed finding that b/c ∆ was entitled to qualified immunity, ∏ was required to plead ∆’s bad faith. There
was no clear burden of pleading in the statute. District court and court of appeals placed the burden on ∏ → required to plead bad
faith as part of his claim for relief. SCOTUS reversed, holding that ∏ satisfied his burden of pleading.
1. Immunity is like an affirmative defense (Rule 8c)
2.
3. The purpose of the statute was to protect ∏.
4. Qualified immunity usually used as a defense.
5. Bad faith evaluated w/ objective and subjective standard—only ∆ can prove subjective standard.
IV. CHALLENGING THE COMPLAINT- MOTIONS (RULE 12)
A. GENERAL INFORMATION
 ∆ must respond within 20 days of being served (Rule 12a1) (unless waived service under 4d → then get 60 days
in US / 90 in foreign country)

Three ways ∆ can respond to a complaint:
1. NOTHING—DEFAULT JUDGMENT (RULE 55)
 This is not valued because we want to define the scope of the dispute for efficiency. Complaint
defines the broadest scope, the answer narrows down what we are arguing about. We would rather get
there sooner than later.
 After default judgment you could attack judgment when ∏ later tries to enforce it in subsequent
proceeding → “collateral attack.” This is dangerous b/c if you lose you have no other defense.
2. PRE-ANSWER MOTIONS (RULE 12)
 If you file a pre-answer motion, your responsibility to answer is suspended. If motion is denied, you
usually have 10 days (12a4) to answer the initial complaint.
 Used to resolve matters which can and should be resolved quickly and early on.
3. ANSWER
 if no pre-answer motion or if pre-answer motion is denied
 Respond to complaint and assert additional information and/or affirmative claims
B. ELEMENTS OF A MOTION
1. Motion: what ∏ or ∆ wants court to do
2. Notice: when to decide requests
3. Affidavits: external evidence to support motion (in motion for dismiss typically do not have)
4. Memorandum of points and authorities: legal argument for request
5. Proposed order for judge
C. RULE 12 BACKGROUND
 PURPOSE: Prevent undue delay
 Committed to file only 1 pre-answer motion—assert as many defenses as AVAILABLE (12b’s and 12e)
 Rule applies to counterclaims and 3rd party complaints
 Removal from state to federal court does not effect party’s ability to raise 12b defenses
 Waive a right by (1) Not including in pre-answer and/or answer, (2) Appearing, or (3) Litigating
 Can only amend pleadings (Rule 15) not motions, which aren’t pleadings (Rule 7(a)(b)

Three substantive challenges:
1. 12 e → more definite statement
2. 12 f → strike redundant or scandalous matter
3. 12 b 6 → failure to state a claim

4 Types of Pre-Answer motions:
1. 12(e) and (f)→ waived if you do no mention
2. 12(b)(2) through (5)→ waived under 12(h)(1)
3. 12(b)(6) and (7)→ up to and including trial you can raise these 12(h)(2). Will call them 12c’s
4. 12(b)(1)→ any time and court may even step in and raise
RULE
A
B
C
D
E
CONTENT
Timing issues for responses
Initial defenses--- all other defenses can only be in answer
1. Lack of jurisdiction over subject matter
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficiency of process→ document (eg, seal)
5. Insufficiency of service of process→ service (not left w/
right person)
6. Failure to state a claim upon which relief can be granted
7. Failure to join a party under Rule 19
Motion to dismiss after all the pleadings have been
complete but before trial → if extra info will be considered
a SJ
Preliminary Hearings
Motion for more definite statement before response
COMMENTS
20 days to file answer
60 (or 90 for foreign) to respond if waiver
10 days after court notice if pre-answer
12(c) gives mechanism to raise 12(b)s up to and including
trial b/c of 12(h)(2). They will no longer be called 12(b)s.
If used, must be made before answer. But….
Courts rarely grant these motions b/c the standard is so high
Rule 8 only requires a short and plain statement that ∏ is
entitled to relief So, complaint must be so vague that the ∆
cannot determine what the ∏ is asserting for the court to grant
Otherwise, court may interpret as ∆ trying to get more info
and this is inappropriate b/c must seek via discovery
F
Motion to Strike
G
Consolidation of Defenses in Motion→
Must claim all defenses UNDER THIS RULE (b and e)
that are available to you at that time.
If so vague use 12(b)(6)—more efficient and less redundant
1. Law does not provide for the relief
2. Complaint is redundant, immaterial, impertinent or
scandalous → such motions are not favored b/c waste time.
Court should see if moving party will be prejudiced (jury or
public)
If service of process bad (never got complaint) may be able to
file 12b or 12e after.
Prevents ∆ from dragging it out.
H
WAIVER OR PRESERVATION OF CERTAIN
DEFENSES
(1) Waived if (A) omitted from a motion or (B) neither
made by motion under this rule nor included in a
responsive pleading or an amendment permitted by Rule
15(a) to be made as a matter of course (once before
responsive pldg served or if no responsive pldg—not on
trial calendar and w/in 20 days)
(1)Personal jurisdiction
Improper venue
Insufficiency of process
Insufficiency of service of process
(2) Preserved → can be raised in any pleading under Rule
7a or by motion or at trial (no 2 pre-answer motions for
12b6 b/c must call 12c):
1. Failure to state a claim
2. Failure to join a party
3. Failure to state a legal defense (Rule 7a)
(3) SMJ raised any time
Procedural objections:
-Aware immediately
-Would waste time: Prevents ∆ from dragging ou →
EFFICIENCY
-Not fair for ∆ to later bring up
12(b)(6): May be tougher to tell at beginning
Speak to merits
Fundamental to our system of federalism
Includes 2nd pre-answer motion
Why aren’t affirmative defenses in Rule 8(c) included under 12?
Defenses under 12 are usually fairly easy to decide. Those defenses listed in Rule 8 involve more complicated elements
and it is difficult to resolve them early on.
What are the benefits of using a pre-answer motion? All 12(b) claims can be in pre-answer motion or answer. But, there
are some benefits to using the pre-answer motion:
1. Easy, early, and cheap way to terminate case → some pre-answer motions require no factual investigation (12b6)
and some require very minimal (12b1).
2. Answer must have counterclaims arising out of same transaction as claim
3. Ten day extension
V. RESPONDING TO COMPLAINT-THE ANSWER (RULES 8(b), (c), (d), 12)
A. GENERAL INFORMATION
A. Prepared by counsel
B. Served to other parties’ lawyer
C. File answer with the court
D. Typically, 20 days after service of complaint to file an answer
E. Rule 8 specifies what goes in an answer
1. Respond to every allegation in complaint
a) Admit
b) Deny
c) Lack sufficient information to admit or deny
2. Affirmative defenses 8c or Rule 12 defenses if applicable
B. DENIALS
 Rule 8b: Defenses→ admit, deny, or state lack of sufficient allegation
o State in short and plain terms
o If without knowledge party should state so → same effect as a denial
o ∆ cannot use for facts that are “presumptively within his knowledge”
o Specify which part denying and which part admitting
o General denial if want to deny all allegations → frowned on (Zielinski)
 Risky → If general denial does not “fairly meet the substance of the averments denied,” it may deem
 to have admitted ’s specific averments.
o Deny only those allegations that ∆ actually disputes
 Rule 8d: Effect of Failure to Deny: Any allegations not denied is deemed admitted
 When denial misused, evaluate….
1. Who was CULPABALE?
2. Who had KNOWLEDGE?
3. Who is PREJUDICED?
Zielinski v. Philadelphia Piers, Inc.: ∏ injured by forklift driven by Sandy. Forklift was owned by CCI not . Sandy actually
worked for CCI but did not know.  confused and sued wrong ∆. B/c wrong person, SOL ran up. Court told jury to accept that
PPI owned (even though false). If you make a general denial when it is obvious that some parts of it are true, then your denial
can be ruled ineffective b/c of bad pleading practices. B/c there was no NOTICE court balances the equities → equittable
estoppel
1. Had ∏ made specific denials in answer, ∏ would have sued correct ∆
2. ∆ had knowledge
3. Companies have same insurance, so not much prejudice.
C. AFFIRMATIVE DEFENSES
1. TYPES OF AFFIRMATIVE DEFENSE
 Rule 8(c) lists 19 defenses—this list is NOT exhaustive. Required b/c permits parties to chart the course of litigation
→ we do not want surprises late in the course.
DEFENSE
Accord and satisfaction
Arbitration and award
Assumption of risk
Contributory N
Discharge in Bankruptcy
Duress
Estoppel
Failure of Consideration
Fraud
Illegality
Injury by Fellow Servant
Laches
License
Payment
Release
Res Judicata
Statute of Frauds
SOL
Waiver
DEFINITION
Agreement to substitute for an existing debt some alternative form of
discharging debt
Dispute resolution w/ 3rd party
Party who takes on risk, injury or damage cannot maintain an action
against another part
Damages suffered are partially ∏s fault
Release of a debtor from personal liability
Use of threat of harm or detention to compel a person to do something
Good faith reliance on misleading evidence
Contract’s basis for inducement ceases to exist or becomes worthless
A knowing misrepresentation of the truth or concealment of material fact
Act that is not authorized by the law
Unreasonable delay or negligence in pursuing a right or claim
Revocable permission to commit act that would otherwise be unlawful
Performance of an obligation by the delivery of money
Liberation from an obligation, duty, or demand
Issue between parties has already been decided by another court
K unenforceable if not in writing & not signed by party to be charged
Establishing a time limit for suing in a civil case
Voluntary relinquishment of a legal right
2. AFFIRMATIVE DEFENSE TESTS
a. Look at list of 8c or if analogous to one
b. Affirm and Avoid → Affirm underlying circumstances but avoid legal theory
c. New Information→ need to give ∏ NOTICE
d. Information known only by ∆
e. Look at Statute → language and intent (e.g., protect ∏ or ∆? Phrased as an exception to rule, etc.?
**If just explaining circumstances (e.g., swerving to avoid hitting a child) it is not an affirmative defense.
Layman v. Southwestern Bell Telephone Co.: ∏ sues for trespass. ∆ denies allegation that he trespassed. At trial, ∆ introduces
evidence of easement. ∏ says that easement should have been an affirmative defense. ∆ says did not have to include as affirmative
defense because it is implicit in the denial of a trespass. Court finds for ∏ b/c ADDITIONAL FACTS WERE INTRODUCED. If
denial used when affirmative defense should have been used, evidence for the affirmative defense will not be allowed during trial.
D. DENIAL V. AFFIRMATIVE DEFENSE
 May not matter if something is pleaded as a denial or an affirmative defense.
 Matters in case where little discovery → pleadings will bear the entire burden of exposing the issues in dispute.
 If used denial and should have used affirmative defense, you have waived b/c you gave no NOTICE
 If used affirmative defense & should have denied, gain burden of pleading. Although technically this does not have to
carry over to the other 2 burdens, it usually does
VI. AMENDMENTS (RULE 15)
Rule 15. Amended and Supplemental Pleadings (fairly liberal amendment policy!) Deals with amendments, relation
back of amendments to original pleading, and supplemental pleadings.

Appellate Court reviews for abuse of discretion

WHY allow amendments? Promotes…
1. Accuracy—Pleadings provide preliminary def. of what lawsuit is about. Defs. may change as suit develops &
discovery reveals facts unknown at time of original pleadings. Want to try case on merits & not technicalities
2. Efficiency—Want all transactionally based claims tried in 1 lawsuit
3. Fairness to party who wants to amend though must look at the prejudice to ∏

PURPOSE of relation-back is to provide ∆ with the protection of SOL → NOTICE
CONTENT
15a
20 days to amend and after that “leave to amend shall be
freely given when justice so requires.”
15b
Deals w/ amendments interposed during the course of trial
to reflect the introduction of evidence that is not within the
scope of the pleadings
Amendment after SOL→ need to “arise out of same
transaction”
15c
COMMENTS
Tension between wanting accuracy and avoiding prejudice
Need 15(c) and 15(a)
NOTICE is key: Same facts to prove (Bonerb, not Moore)
Diff. duty & conduct but same transaction & notice (Bonerb)
Narrow definition of mistake when relate back and add new ∆
(e.g., thought John’s name was Joe)
 Other considerations:
 To argue against relation-back focus on ∆s conduct
 To argue for relation-back focus on ∏s injury → anything that arose out of that injury
 Success of using relation-back may be very dependent on the narrowness/broadness of the facts of a complaint.
Beeck v. Aquaslide N’ Dive Corp: ∏ was seriously injured when using a water slide. ∏ sued ∆ manufacturer. ∆ admitted it
manufactured slide, but later amended its answer to deny. On appeal court held that trial court did not abuse its discretion in
allowing amendment. Court said prejudice to both sides, but PREJUDICE to ∏ could be offset b/c ∏ could sue real ∆ (SOL
allows more time if not sure identity of ∆). ∆ was NOT acting in BAD FAITH. It would NOT BE EFFICIENT or ACCURATE
to have wrong ∆ during discovery (no records on slide design).
Moore v. Baker: MD performs surgery that does not go well. Patient first sues for failure to adequately inform her of alternatives
and risks of this surgery. After SOL, ∏ wants to add claim that ∆ was negligent during surgery. Because different facts/evidence
need to be alleged the claims do not arise out of the same transaction. ∆ has no NOTICE.
Bonerb v. Richard J. Caron Foundation: Patient at rehabilitation center falls on BB court. First claims that ∆ negligently
maintained BB court. After SOL runs, ∏ wants to add claim that the counseling that he was given that required him to play, was
N. The court held that the allegations of the original and amended complaints derived from the same nucleus of operative facts
and thus gave notice to the rehabilitation facility operator to the possibility of a claim based on N performance of professional
duties.
VII. ETHICAL LIMITATIONS (RULE 11)
A. HISTORY
 Very easy to get a complaint through the system—Rule 8(a) does not require much. Need other safeguards:
A. VERIFIED PLEADING: pleading party swears under oath that pldg. is true. Usually doesn’t dissuade much
B. RULE 11 SANCTIONS
 For many years, no safeguards
 BEFORE 1983 →Rule 11 allowed sanctions if you could prove “subjective bad faith,” which was

basically impossible so few motions
AFTER 1983→ amendment said you can charge either party or lawyer– don’t need to prove “bad faith”
– ↑ motions


1993 → amended b/c of high volume of litigation w/ focus on deterrence vs. compensation, trying to
reduce number of motions while ensuring integrity on the pleading process.
HR 4571 (known casually as the anti-Edwards bill)→ incentive to impose more sanctions:
1. Court must find violations—↑ motions
2. Eliminates 21 day safe harbor provision
3. Sanction no longer “limited” & will compensate—↑ motions
4. Third strike provision—you will be suspended
C. §1927—conduct that would multiply proceedings & delay case—may also fall under Rule 11; involve $ only
D. INHERENT AUTHORITY—Ct. can sanction behavior that is in “bad faith;” More egregious than Rule 11
B. BACKGROUND
 Limited to what is sufficient to DETER not compensate→ $ usually goes to court (May be other type: continued
education, naming them, file complaint with bar)
 Very broad - applies to any pleadings, motions, papers that are signed – excluded are discovery requests and
responses – these are governed by rule 37.
 Even if Rule 11 is violated, the court DOES NOT HAVE TO impose a sanction
C. PROVISIONS
(B) Representations to Court
1. Improper purpose
2. Warranted legal claim and Non-frivolous
3. Have or likely to have evidentiary support
4. Denials are warranted
(C) Sanctions → may impose sanction on attorney, firm (to promote good hiring and superviosn) or
party (not for 11b2 and when party has best knowledge:
1. Initiated by motion or court
2. To deter repetition ( $ or other); in 11B2, party will not pay
D. FILING
To initiate by motion, 11c1A party must:
 move separately from other motions
 describe the specific conduct alleged to violate 11b
 Serve to party (safe harbor provision) → file 21 days after service if challenged paper/claim/defense/contention
/allegation/denial is not withdrawn or corrected
 Expenses and attorney fees may be awarded to prevailing party; firm held jointly responsible for violations
committed by its employees (unless extreme)
For court to initiate sanctions, 11c1B, it
 Enters order describing specific conduct that appears to violate 11b
 Directs attorney/firm/party to show cause why it has not violated 11b
**Those facing sanctions must receive adequate notice and opportunity to respond to such sanctions.
E. DETERMINING SANCTIONS (see issue chart)
 Sanction? Expertise, party’ response (< important w/ safe harbor), infect 1 pleading or many, nature of error
 Who? Party only if purposefully misleading and not 11b2
 How Much? Resources of the attorney to determine amount
F. OTHER NOTES
 Many inappropriate things (non misreps.) that attorney may due that don’t violate Rule 11 (Christian)
 Rule runs counter to basic tenets of our U.S. legal system→ parties pay their own attorney’s fee. Everyone should be
able to go to court → people would be discouraged from going to court if had to pay both fees.
 Court must give specific info on why sanctioning
 Appellate judge reviews for trial court’s abuse of discretion→ deferential standard to uphold efficiency
Bridges v. Diesel Service, Inc.: ∏ failed to file a charge with the EEOC, which was a condition to filing a discrimination suit
under the ADA. court chastised ∏’s counsel but did not sanction → monetary sanctions were not necessary to DETER future
misconduct. Rule 11 sanctions should be reserved for SUBSTANTIVE not PROCEDURAL mistakes.
Walker v. Norwest Corp.: Complaint stated jurisdiction based on diversity b/c trust beneficiary and some ∆s (a corporation,
trustees, and agents) were citizens of different states. ∏ never pleaded citizenship of the individual ∆s or corporation. Federal
diversity jurisdiction required complete diversity, so that no ∆ was citizen of same state as ∏. Appeals court said trial court did not
abuse its discretion in determining that sanctions (11b3 and maybe 11b2 violation).
Christian v. Mattel, Inc.: Trial court imposed 11(b)(3) sanctions after finding that attorney had filed a meritless claim vs. ∆. Court
found that even if the trial court was justified in sanctioning him under Rule 11 based on the complaint and the following motions,
its conclusion was tainted because it considered OTHER MISCONDUCT that CAN NOT BE SANCTIONED under Rule 11
(discovery abuses, misstatements made during oral argument, and conduct in other litigation).
Whitehead v. Food Max: After winning case, attorney went to execute judgment w/ marshal and the media. ∏ argues for improper
purpose. Rule 11(b)(1). Court says you can do something for an improper purpose even if it legally sound—must look at what
attorney was thinking. Although ∆ was alleging a proper purpose, court did not buy it—the court looked at CIRCUMSTANCES
to decide LEGITIMACY OF PURPOSE.
II. PERSONAL JURISDICTION—WHICH STATE?
BASIC TENETS FOR SELECTING GEORGRAPHICAL LOCATION
Determine PJ through:
a. NOTICE—must comply with:
(1) Constitutional requirements from Mullane (reasonably calculated to allow ∆ time to appear)
(2) FRCP Rule 4
b.
POWER—must comply with:
(1) State or federal LA statutes (if no federal LA statute, look at states)
(2) Const. requirements for due process from International Shoe
 MC (quality and nature → test w/ purposeful availment)
 Reasonableness/Fairness (fair play and substantial justice)
Three Types of Personal Jurisdiction
1. IN PERSONUM— Power over person, corporation, or association
2. IN REM— ∏ seizes ∆s property to satisfy ∏s interest in property
3. QUASI IN REM—∏ seizes ∆s property to satisfy claim unrelated to the property
A. HISTORICAL CLAMS
Under Pennoyer v. Neff:
 Established that courts must have PJ over ∆ or else violates 14th→ SCOTUS can now police
 CL rule: All ∆s must be served personally w/process and all non-resident ∆s must be served personally in forum state
 Rule reflects notice and power requirement for personal jurisdiction
 Constructive notice (published) is not enough when suits involves personal rights and obligations (vs. actual property)
 Authority:
a) Art IV §1: Full Faith & Credit Clause→ states must abide by other states’ rulings to protect sovereignty
b) 14th Amend: Due Process→ if ct. does not have PJ it violates DP
 Divides b/w in personum, in rem, and quasi-in-rem jurisdiction
B. CHALLENGING PERSONAL JURISDICTION
1. CHALLENGING RENDERING COURT
a. Special Appearance
 Make objection at trial w/o automatically consenting to jurisdiction
 Only allowed in some states
 Can not raise issue re: merits (waive personal jurisdiction)
b. Rule 12 of FRCP
 Must make in 1st reply whether pre-answer or answer. 12(h)(1). See pleadings.
2. CHALLENGING ENFORCING COURT
a. Collateral Attack
 Don’t show up and receive default judgment
 Attack personal jurisdiction during enforcement
 Risky b/c you give up chance to challenge merits
 Can not raise personal jurisdiction or other issue 1st
 Court can evaluate only jurisdiction before adhering to Full Faith & Credit Clause
Other Notes
 After raising, losing, & litigating, most states allow ∆ to appeal but some say waived
 Can immediately appeal and not litigate in some state courts (WWV). Never in federal court b/c need final judgment.
 Presence of property almost always forces direct attack b/c will have to go to inconvenient ct. for execution of claim
C. NOTICE
1. CONSTITUTIONAL REQUIREMENTS
Mullane Test- Reasonable means of providing notice using a cost-benefit analysis (risk of erroneous deprivation v.
probable value of additional safeguards):
 Private interest that will be affected (large or small?)
 Number of people (if 1 person, it must be very reliable)
 Reliability
 Government interest

Something less than individual notice will most likely to satisfy due process:
o Impractical
o Suit is in interest of absentees
o Absentees will be adequately represented
o Value of individual interest is small
Other Notes
 To violate Constitution, notice must DEPRIVE ∆ of Due Process → Individuals whose property interests are at stake
are entitled to notice and an opportunity to be heard
Mullane v. Central Hanover Bank & Trust Co. Notice was given to beneficiaries of a trust via a newspaper publication. Court
held that if names/addresses were known, mailed notices were required. Publication in the paper was sufficient notice for unknown
people→ cheap to send notice to known people who have larger interest in suit. Unknowns would be expensive to notify and little
was at stake for them. In large suits such as this one, when everyone has the same interest, everyone doesn’t need to be notified.
The majority can speak for the rest.
Dusenbery v. US. ∏ was sent a notice while in prison by certified mail. Prison employee signed for document, not party and ∏
never received it. Court held that notice was reasonable, state doesn’t have to give actual notice and the fact that better system is
available doesn’t make notice unreasonable.
DISSENT: test should be whether the method was substantially less likely to bring notice than a feasible substitute?
2. MECHANICS OF SERVICE
Documents and process… (Rule 4c)
Summons and complaint
Served by > 18 years and non-party
Waiver of service… (Rule 4d)
 1st class mail w/ copy of complaint and request to return
 Domestic→ 30 days to return waiver or charged w/ costs associated w/ providing formal service if no good cause
 Incentive → ∆ allowed 60 (not 20) days to answer complaint
 s may still want to choose personal service if SOL nearing (date of waiver may be used instead of filing date)
 Waiver of 12(b)(4) and (5) but no other 12b’s
Service on individual … (Rule 4e)
 Personal Delivery on Natural Persons
 Service on Person Residing in s Dwelling House or Usual Place of Abode AND of suitable age and discretion →
rule applied liberally
 Delivery to an Agent Authorized by Appointment
 Serve according to state provision where Fed. Court Lies→ alternative
 Serve according to state provision where service is made→ alternative
Service on Corps., Partnerships, and Unincorporated Associations… Rule 4(h)
 By Delivery or mail to an officer, a managing or general agent, or to an agent authorized to receive service of process
(look at their position in company to infer if service is okay→ make sure likely to realize importance of the papers)
 If agent is authorized by statute to receive service – also have to mail a copy to 
 Serve according to State provisions for Corps where fed court lies→ alternative
 Serve according to laws of state for Corps where service takes place→ alternative
Proof of Service… Rule 4(l)
Timing… Rule 4(m)
Service must be made within 120 days of filing of complaint; dismissal unless good faith
**Rule 5 applies to service of all other documents → more flexible because simple method for exchange vs. the
heightened standard for complaint, which notifies party who knows nothing about the suit.
TRADITIONAL BASES FOR PERSONAL JURISDICTION:
1. CITIZENSHIP (at time of filing b/c about convenience)
Individual → domicile
Corporation → place of incorporation or where lots of activities
2. PHYSICAL PRESENCE OF PERSON (“transient jurisdiction”) ( Burnham)
3. CONSENT
In a contract (fine print) (Carnival Cruises)
By conduct in objection (counterclaim to ct. w/o jd.)
No objection (waived)
4. PRESENCE IN FORM STATE (eliminated in Schaffer)
D. MODERN FORMULATION OF POWER
AUTHORITY:
1. Full Faith & Credit Clause: every state required to give full faith & credit to valid judgments rendered by other states
2. Due Process Clause (14th): no state can deny an individual life, liberty, or property w/o the full due process of law
1. INTERNATIONAL SHOE TEST:
Test for Due Process and PJ (protect ∆ against burdens of inconvenience and ensure states don’t reach too far)
a. MINIMUM CONTACTS…. PRIMARY ISSUE
a. Rational→ activities will lead to impact and potential lawsuits; state has a right to enforce the orderly
conduct of affairs w/in borders by adjudicating disputes that arise from such in state activity
b. Evaluated By→
o Quality: Continuous/Systematic or Isolated/Casual
o Nature: Related vs. Unrelated
o Tested by purposeful availment to state’s benefits and laws
b. FAIRNESS/REASONABLENESS…. SECONDARY ISSUE
a. ∆ Burden
b. ∏ Interest—obtaining relief
c. Forum State Interest—redress to its citizens,; injury site; giving rise to claim site, whose law?, evidence
d. Interstate Interest for Efficiency—applicable law; joinder
e. Interstate Interest in Public/Social Policy
c. CHANCES FOR JURISDICTION:
 Continuous/systematic contacts related to claim→ YES
 Casual/isolated contacts unrelated to claim→ NO
 Other two combinations → MAYBE
d. GENERAL AND SPECIFIC JURISDICTION:
 General: Acts are sub. enough to support suit even if unrelated to claim
 Specific: Acts are NOT sub. enough to support unrelated; only related to claim
OTHER NOTES
 Standard applies to individuals and corporations
 For MC, focus on time when ∆ acted not time of lawsuit
 Not based on best or most MC, just minimum
 Employer’s contacts will not be imputed on to employee
International Shoe Company v. Washington→ ∏ (WA) sued ∆ (DE corp) in WA. Court found agents’ conducting business in
states satisfied requirement and would be reasonable and fair→ PERSONAL JURISDICTION.
 PJ is proper if:
o ∆ has MC w/the forum state and the claim arises out of those contacts; AND
o Asserting PJ is fair (complies w/due process); doesn’t offend “traditional notions of fair play & sub. justice”
 When corp. exercises the privilege of conducting business in a state it enjoys the benefits and protections of that state:
o Exercise of this privilege may give rise to obligations
o So far as those obligations arise out of or are connected w/activities w/in the state, requiring corp to respond to a
suit can hardly be said to be undue
2. ABSORBING IN REM
a. MC Analysis for Traditional In Rem Case → Will Always Satisfy IS
 Contacts = Property/Thing
 Nature → Gives rise to claim (e.g., injury suffered on land)
 Quality → Continuous and systematic
 Substantial Justice → Expected to benefit and use courts for resolution
 Fair Play → Little burden & convenient (records & witnesses)
b. MC Analysis for Quasi In Rem Case → Will Sometimes Satisfy IS
 Contacts ≠ Property/Thing
 Benefits accrued from property may not flow to obligation (e.g., apples and oranges)
 Evaluate substantial justice and fair play
 Can only recover for value of property in the state
**In circumstances where ∏ can not find any state where ∆ has MC court may allow attachment of property → MC is
about protecting ∆, but in these circumstances ∏ must be protected.
Schaffer v. Heitner→ ∏ (OR) trying to sue ∆ (DE corp execs) in OR, tries to use ownership of DE stock to establish quasi-in-rem
jurisdiction
 Establishes that property ownership w/in state is not enough for PJ—property must have relationship to claim
 Therefore: no more quasi-in-rem; must IS test
 Rejecting Pennoyer decision that seizing property would be sufficient to establish PJ
 Ct: ∆’s did NOT have sufficient MC in DE b/c property seized is not closely related to claims→ no PJ
 After this: all PJ must meet Intl’ Shoe test
3. APPLYING MC TEST TO SPECIFIC JURISDICTION CASES… ALSO NEED TO SATISFY LA STATUTE
a. MUST HAVE MC AND PURPOSEFUL AVAILMENT
 Purposefully avail self of privileges from activities in forum state→invoke benefits & protection of laws
 Voluntary initiative by seller!
 MC required even if reasonable (WWV)
 MC can be from a single act (McGee) or from continuous but limited activity (Burger King)
 Tested by evaluating whether ∆ purposeful availed self (McGee, but see Hanson)
o ∆ reasonably anticipated activities could give rise to cause of action in forum state
o ∆ received benefits and/or privilege from the state
b. MUST BE REASONABLE:
 Even if MC, must be reasonable to have PJ (Asahi)
 If strong MC, must be VERY unreasonable to find jurisdiction insufficient (Burger King)
c. APPLICATION TO SPECIFIC AREAS
i. Stream of Commerce: AT WHAT LEVEL IN CHAIN OF COMMERCE DOES PJ APPLY B/C OF PA?
 Courts focus on seller’s scope of activity rather than predictable area buyer’s use
 Importer & manufacturer may avail selves to state b/c national org., but retailer and the distributor have
no control over where car ends up—not foreseeable if not marketing, advertising, etc. (WWV)
 Foreseeability about being dragging into court (WWV)
 ASAHI:
o Brennan (+3): stream of commerce theory is sufficient to establish contacts
 If sub. profits from sale of automobiles, there is personal jurisdiction
o O’Connor (+3): ∆ must direct activities towards the forum state; not just awareness
 Must deliver product into SOC w/ expectation that it will be purchased in forum state
 Must foresee that conduct and connection with state could bring ∆ into court there
o Stevens (swing vote): ∆’s components making way to forum to establish MC depends on:
 Volume of components
 Value of components and
 Hazardous character of the components
ii. Contract Cases:
 Purposeful availment (McGee)
 Evaluate MC by looking at: (Burger King)
a. Site of negotiations

b. Terms of contract
c. Course of Dealing
d. Contemplated future obligation
PJ may NOT be grounded in a K:
o Whose terms were obtained through fraud, undue influence, adhesion (≠ bargaining power) and
o Whose application would make litigation very difficult for a party
iii. Internet Cases
 Spectrum of MC (Pavlovich)
o Clearly doing business→ PJ
o Interactive → evaluate level of interactivity and commercial nature of information exchange
o Passive → no benefit so NO PJ
 Best indicators for Internet contacts:
o Amount of sale generated in state
o # of times website has been accessed by residents or businesses located in specified state
 Other Internet factors to evaluate (Coastal and Gator):
o Beyond merely advertising ad solicitation of products
o On-line visitors can purchase
o Questions posting and answering
o High level of interactivity→ intention to be a virtual store?
o % of sales
o Marketing extent
o Contact with state vendors
iv. Effects Test→ If ∆ commits an act outside of state that she knows will cause harmful effects w/in state, she
will be subject to MC jurisdiction (Calder) MUST BE INTENTIONAL
 Ex: Attorney calls client in CA on a regular basis to give legal advice and bills for time; even if
attorney never visited in CA, subject to malpractice (he benefits)
Asahi Metal Industry v. Superior Court→∏ brings product suit against manufacturer (Taiwan), manufacturer brings suit against ∆
valve manufacturer (Japan) in CA
1. MC Test: (Court split)
NO: ∆ didn’t PA itself. Must specifically target sale of state. Mere awareness not enough (O’Connor)
YES: In substantial quantities, should foresee and is benefiting (Brennan)
2. Reasonableness: (NO)
High burden on foreign D
Interest of CA: low, neither party is CA resident
Interest of ∏: low, is Taiwanese
Interstate Interest: low, Taiwan/Japan have more interests than CA
Burger King Corp. v. Rudzewicz→∆ (MI) negotiated w/ ∏ (FL) to open a franchise. ∆ fell behind on rent, ∏ sued him in FL
1. MC Test: (YES)
∆ purposely availed self through negotiations in FL
K arose in FL—as long as contract was legal, it is a contact
∆ would have future systematic and continuous contact w/FL
2. Reasonableness: (PROBABLY YES—would have to be so ↓ b/c MC)
∆ burden not too ↑— he would have contact w/FL anyway
Reasonable for choice of FL law b/c ∏ is there
DISSENT: unfairness b/c negotiation power not fair. Also, ∏ has interest.
Hanson v. Denckla→ ∏ established trust in DE, moved to FL—does FL have PJ over DE trust? No personal jurisdiction b/c no PA
McGee v. International Life Insurance→ ∏ (CA) bought insurance from ∆ (TX), trying to sue in CA. Ct. found PJ because ∆
purposely availed himself to CA which overrode the reasonableness factors. Insurer sent letter to CA citizen (e.g., CA had interest
in protecting citizens, burden on ∆ ↓ b/c of nationalization of commerce)
Pavlovich v. Superior Court→ ∏ corp. alleging ∆ took trade secrets by posting on internet. Court said ∏ did not purposefully avail
himself b/c the website merely posted information and had no interactive features→ this alone is not sufficient to subject him
to personal jurisdiction.
World-Wide Volkswagon Corp v. Woodson→∏ bought car in NY, had accident in OK and brought suit against: Seaway (NY
retailer*), WWVW: (area distributor*), VW (American importer), and Audi (manufacturer).
No MC for area retailer and distributor→ No PA b/c no deliberate act, didn’t sell there, no reason to expect
Maybe MC for importer and manufacturer → they availed themselves to state b/c national orgs.
DISSENT: OK had interest in protecting citizens on roads & ∆ did have contacts (sold car w/ purpose of traveling, so foreseeable).
4. APPLYING MC TEST TO GENERAL JURISDICTION
 Contacts are systematic and continuous so they do not have to be related to claim → ∆ would expect any claim
A. CONSTITUTIONAL POWER
1. PHYSICAL PRESENCE—transient tag jd-- court has jurisdiction w/o MC (Burnham)
2. NO PHYSICAL PRESENCE (Coastal; Gator)
a. Continuous and Systematic Contacts
i. Active participation in state’s markets
ii. Selling large number of goods
iii. Customer service
iv. % of sales in state
b. Reasonableness (same as above)
B. STATUTORY POWER → must satisfy federal or state LA statute

Note: Some circuits say that Burnham is not applicable to corporations

Hypotheticals:
o Served while on business→ Probably would be jurisdiction under Burnham
o Served while on plane → Brennan would probably say not ok b/c no MC
o Served while on vacation→ Scalia: Yes—Strict present and consent “tag” jurisdiction
→ Brennan: Probably—MC by vacationing there
Burnham v. Superior Court. ∆ and wife separate, wife moves to CA and sues for divorce, personally serves ∆ while visits CA.
Serving ∆ personally w/ notice in forum state is enough to establish general personal jurisdiction (even if claim unrelated to
in-state activities). Court dispute over reasons (no majority):
 Scalia→ historical traditions allow tag jd. so it’s constitutional
 Brennan→ should not rely only on tradition, must also MC and reasonableness test
Coastal Video Communications Corp. v. The Staywell Corp. Declaratory judgment did not arise from publication of handbook, so
need general jurisdiction. Court said not enough information to decide, need further discovery. MC must be extensive to qualify
for general jurisdiction. Evaluate:
 Traditional Business Contact
 Internet Business Contacts → Amount of sale generated in state
→Times website accessed by residents or businesses in forum state
E. CONSENT



∆ may knowingly consent to PJ, negating need for MC
o Agree in K (may be in fine print)
o By conduct in objection (CC when court would not have otherwise had jd)
o No objecting at all (waived)
o Actually “consent” or impled (e.g., driving in state)
Still must be tested for enforceability
a. Fair → Bad faith (trying to discourage lawsuit) v. Reasonable forum
b. Notice
c. Luxury vs. Necessity item
d. Efficiency → Special interest in limiting forum?
e. Bargaining power and public policy
f. State interest
g. Law that would apply
Types of Clauses:
o Choice of law clause: establishes which law to use
o Choice of forum clause
o Consent to jurisdiction clause: consent to a state—permits jurisdiction but doesn’t make mandatory
Carnival Cruise Lines v. Shute→ ∏ took cruise, forum selection clause on ticket that said all suits must be in FL, ∏ bringing
suit in WA. Court found no PJ b/c a forum clause in K is binding & ∏ consented (notice undisputed). Clause was reasonable:
 Good rationale behind→ ↓ fares, dispels confusion, ↓ litigation $
 Makes sense for ∏’s suits to be in FL
 No bad faith
 Carnival has few contacts elsewhere since only passing (vs. BK)
DISSENT: PP problem w/ uneven bargaining power.
F. SELF IMPOSED RESTRAINTS ON JURISDICTIONAL POWER
1. LONG ARM STATUTES
 BACKGROUND
 Reaching out of state ∆s to call back into state to defend
 Const. (due process) sets outer limits on state jd, but need state statutory authorization for cts to exercise PJ
 LA statutes not automatically constitutional→ if personal jurisdiction not constitutional under statute courts
will say no jurisdiction in specific case rather than say statute is unconstitutional (the “bulge”)

PURPOSE
 Efficiency
 Would rather decide based on statute than Constitution
 Historically LA statutes enumerated acts
 Guidance for non-residents and ∆s

SCOPE
 Some reach as far as jurisdiction (e.g., CA) → “Any basis not inconsistent w/ Const.”; self-adjusting
 Other limit to specified occurrences (e.g., NY, FL) → Usually cases arising out of contacts
 “Intended to reach to the limits of due process” → interpret acts liberally

FEDERAL LA
 RULE 4(k)(1)→ Federal LA:
1. Service of summons or filing a waiver of service is effective to establish jurisdiction over ∆
A. Who could be subjected to jd. of a court of general jurisdiction in the state in which the
district court is located, OR
B. Parties joined under Rule 14 or 19 and served w/in a judicial district of US and nor more than
100 miles from the place from which the summons issues (courthouse), OR.
C. Who is subject to federal interpleader jurisdiction under 28 USC §1335
D. When authorized by a federal statutes
Gibbons v. Brown → Gibbons(TX) sues Mr. Brown(FL) in FL, then 2 years later Mrs. Brown(FL) files suit against
Gibbons(TX) in FL. CT denies PJ over ∆ b/c she does not have sufficient MC to satisfy FL LA statute. Example of a state that
has a narrower long-arm statute than the Constitution
 Court finds that the prior suit does not satisfy “is engaged” in “substantial” activity”
o Suit is two years later
o Mrs. Brown was not a party in the first suit
 Had ∆ filed CC against ∆ in first suit, FL would definitely have PJ over her in that suit.
 If Mrs. Brown sued in fed court, she would still have to meet FL long-arm statute and Intl’ Shoe test in order for fed
court to have PJ over her.
III. VENUE: WHERE IN THE STATE?
 Venue, like personal jurisdiction, is considered a privilege of ∆ that may be waived
 State courts have their own venue rules separate from the federal court
 Purely statutory, not a Constitutional issue
A. WHY DO WE HAVE VENUE?



To protect ∆ against the risk that ∏ will select an unfair or inconvenient place of trial
To assure that suits are tried in a place that bears some sensible relationship to the claims asserted or to the parties of
the action
EVALUATE: CONVENIENCE (where ∆ resides)
EFFICIENCY (where events took place—evidence and witnesses)
FAIRNESS (want to protect ∆)
B. WHERE IS VENUE PROPER?
1. VENUE IN FEDERAL COURTS 28 USC 1391 FOR CASES COMMENCED THERE
(a) WHEN JURISDICTION FOUNDED ONLY ON DIVERSITY, SUIT MUST BE BROUGHT IN A DISTRICT:
(1) Where any ∆ resides, if reside in same state
More than domicile
Similar analysis to that done in diversity
(2) Where substantial part of events, omissions, or property occurred that gave rise claim
If 2 ∆s look at where claims gave rise→ thus, both don’t need to be directly involved
Purpose: to have connection between location and events
But-for event may be ok (Uffner)
(3) Where any ∆ is subject to pjd at time action commenced if no venue under (1) and (2)
Catchall phrase to ensure venue somewhere
Historical not logical diff;
Only if events happen outside US
but (b)(2) may be broader
(b) WHEN JURISDICTION IS NOT FOUNDED ONLY ON DIVERSITY, SUIT MUST BE BROUGHT IN A DISTRICT:
(1) Same as above
(2) Same as above
(3) Where any ∆ may be found at commencement if no district in which action may otherwise be brought
Only if events happen outside US
(c) CORPORATE ∆S “RESIDES” IN:
 Any judicial district where they are subject to personal jurisdiction at time action commenced
 If 1+ district in state, corporation is a resident in any district where its contacts would be sufficient to subject
it to personal jurisdiction (treating districts like states)
 Does not effect analysis for (2)
 Usually wherever satisfies (2) will also satisfy (1) due to MC analysis
(D) AN ALIEN MAY BE SUED IN ANY DISTRICT
(E) SUITS BROUGHT AGAINST US EMPLOYEES
(F) SUITS AGAINST FOREIGN STATES
2. EXCEPTIONS
1. Forum selection clause: usually held enforceable if reasonable (Carnival Cruise Lines)
2. Statutes which restrict specific areas: patent infringement, copyright suits, interpleader actions, actions
against federal officials, etc.
3. Local actions involving real property: (vs. transitory) generally must be heard in district where land is located
Uffner v. La Reunion Francause, Dallas and Schaeffer→ Evaluated 1391(a)(2) to determine whether sinking of ship off
Puerto Rico gave rise to incident and was substantial enough for venue to be sufficient.
1. Gave rise→ Look at entire sequence of events underlying the claim
Insurance policy→ caught fire → filed claim → denial of insurance
2. Substantial→ Event need not be a point of dispute just may me influential in evidence
Sinking is itself not in dispute, but ∏s requested damages include recovery for the loss
Reasonable→ no tactical advan. for ∏, no forum selection clause, oral testimony showed traveling to Carrib. not a problem
D. DECLINING VENUE
IN ORDER TO TRANSFER TO NEW FORUM, MUST BE PJD AND PROPER VENUE IN FORUM!!!!
Why are there a lot of changes of venue motions from s?
o Usually about changing judge or changing jury
o Can also be about change of law (substantive law)
o Difference in cost of evidence; lawyers fees, speed of case; changes in local federal district procedural rules
(usually housekeeping stuff)
1. TRANSFER AMONG FEDERAL COURTS: (Statutory)
 Rules apply only to fed courts (transfer only w/in sovereign), states have similar transfer options allowing transfer
between jurisdictions in same state
 Available to ∆ and ∏
a. Proper venue but inconvenient (transfer) 28 USC 1404(a):
 Transfer must be for the “convenience of parties and witnesses” and “in the interests of justice”
 New venue must have interest (Piper Aircraft)
 Suit will proceed as if originated in 1st court
 Choice of law gets transferred → want least impact on ∏
b. Improper venue (transfer or dismiss) 28 USC 1406(a):
 ∆ can move to dismiss case under 12(b)(3) or 1406(a)
 ∆ can move to transfer case under 1406(a) → saves time (preserves SOL)
 Choice of law does not get transferred
2. FORUM NON CONVENIENS (CL): REALLY DISMISSAL W/O PREJUDICE
a. BACKGROUND
 Available only to ∆b/c ∏s can voluntarily dismiss
 Used in states courts b/c they can’t transfer b/w states; used in federal cts. if case belongs in other country
 Dismissal of case w/ idea that ∏ will bring in proper court; must be place ∏ can obtain adequate relief
 ∏ may waive SOL and personal jurisdiction
 Choice of law rules for new court where case is brought
b. REQUIREMENTS
1. PROPER VENUE: but inconvenient
2. ALTERNATIVE FORUM: ∆ must show an alternative forum available (unfavorable change in law will be
irrelevant unless remedy provided by alternative forum is so clearly inadequate it is no remedy (Piper)
3. PUBLIC AND PRIVATE INTEREST: Ct favors ∏’s choice unless public and private interests outweigh
c. ANALYSIS
 Higher standard (vs. 1404) b/c dismissal not transfer
 Give foreign ∏ < deference: b/c didn’t bring in own country probably not a convenience issue
 Balancing test b/w ∏’s choice of forum and public/private interests
o Trial would have undue hardship on litigants (PRIVATE INTEREST)
 Practical consideration for fair adjudication of facts (ease, expense, expeditious forum)
 Evidence (ease of access) and witnesses
 Burden on ∆
o Trial would have undue hardship on court (PUBLIC INTEREST)
 Court congestion
 Desirability to decide cases locally (only burden place that has some relation to litigation)
Piper Aircraft v. Reyno : Air crash in Scotland, dead all Scottish, ∏s tried to sue in CA b/c would get more remedy



Removal: Used 1441 to remove case to fed CT so that they could transfer to another state
Transfer: Used 1404(a) to transfer to PA middle district b/c PA has substantial interest
Dismissal: Under FNC, dismissed case b/c Scotland’s interests outweighed U.S.
1.
2.
Private interests: witnesses, most evidence (though some design stuff in US), and some ∆s Scottish
Public Interests: Lack of familiarity w/ Scot law, 2 sets of law confusing; Scotland has greater interest than US (occurred there, all
decedents from there)… local interest in deciding cases locally. Only incremental deterrence for US ∆s
American interest not sufficient to justify the enormous commitment of judicial time and resources
Note: If remedy provided by alternative forum clearly unjust, CT won’t use FNC→ not the case here
Strategic move where ∏ moved to best US location and said still not sufficient!!
IV. SUBJECT MATTER JURISDICITON
Which Court System: State or Federal?
WAYS TO GET SMJ: (1) FEDERAL QUESTION, (2) DIVERSITY, (3) SUPPLEMENTAL JURISDICTION
A. SMJ BACKGROUND



State courts have general jurisdiction; federal courts have limited jurisdiction
Concurrent→ Almost all claims can be heard in state ct. (not patent, copyright, admiralty, bankruptcy, anti-trust)
Forum shopping allowed as long as no frivolous claim or party
1. Can ∏ file in federal court? (legal)
A. Federal Claims
o Article III Sect II→ judicial power for all claims arising under
o §1331 → Cases arising under
B. Diversity Jurisdiction
o Constitution→ minimal diversity
o §1332 → complete diversity and over $75,000
2. Do you want to file in federal court (tactical)
 TIME: Federal courts move faster b/c fewer cases to hear
 FORMALITY: Greater formality in federal court. Rules of civil procedure will change if in state or
federal court. Most are similar but may be some important differences to client or
lawyer (e.g., notice pleading vs. code pleading). Attorneys may be more
comfortable with certain rules. Rules of evidence can also be different.
 JUDGE AND JURY:
o JURIES: State court in each district vs. federal court in bigger areas (e.g, east and west
federal ct.) → juries from larger pool. In WWV→ accident county had reputation for large
rewards (∏ want to stay in state court vs. going to Tulsa and larger jury pool)
o JUDGES: Federal judges have life tenure→ insulate from political pressures. Fewer federal
judges so have a better idea of who will hear your case.
B. FEDERAL QUESTION JURISDICTION
PURPOSE: FEDERAL CTS. HAVE MORE EXPERIENCE W/ FEDERAL LAW; UNIFORM INTERP. & ENFORCEMENT OF FED. LAW


Article III Sect II→ judicial power for all claims arising under (Expansive view)
o Federal question is an ingredient
o Either party relying on federal law to establish claim or assert defense
§1331 → District courts shall have original jurisdiction of all civil action arising under the Constitution laws, or
treaties of the United States.
1. Well-pled complaint rule
2. Federal cause of action
3. State claim that necessarily depends on substantial federal question
1. WELL-PLEADED COMPLAINT RULE (Mottley)(Holmes)
 When the well-pleaded claims of ∏ invoke federal law in the complaint
 Will not look at anticipated defenses (Mottley), defenses, or counter-claims (Holmes)
 Must require inclusion of federal law in complaint (Mottley unnecessarily included)
 ADVAN: -Practical: Want to decide early→ @ filing time b/c ∏ must know whether to file in state or federal ct.
-∏ is master of case→ ∆ should not get right to chose
 DISADV: -Reject valid claims which may focus on interpretation of federal statute and/or Constitution
-Accepts invalid claims which do not focus on interpreting federal law (e.g., employees hrs)—but can
argue that careful interpretation of laws is important for effective enforcement of national policy
IF WELL-PLEAD COMPLAINT RULE IS MET, LOOK TO SEE IF THE FOLLOWING IS MET….
2. FEDERAL CAUSE OF ACTION→ When federal law creates substantive law AND authorizes individual to sue (if
one piece is missing, must look at legislative intent (in Merrell Dow b/c no intent, would go against Congress to allow)
3. STATE CLAIM THAT NECESSARILY DEPENDS ON THE RESOLUTION OF A SUBSTANTIAL
QUESTION OF FEDERAL LAW (Merrell Dow)
a. Necessarily Depends
 Only basis for showing violation/breach is to show a violation of a federal statute, Const., etc.
 ∏ must prove a proposition of federal law to establish state claim (pivotal)
b. Substantial Question
 Colorable federal question resting on reasonable foundation (pretty ↓ standard)
 Novel question we want federal courts to interpret
 Importance of issue (Smith substantial issue b/c evaluated constitutionality of a federal statute; Moore
less substantial b/c only determined whether federal standard had been violated)
Louisville & Nashville Railroad v. Mottley → Court interpreted “arising under” in §1331 as requiring federal claim to be
stated in a well-pled complaint—stating as a prediction of a defense is not sufficient. Court interpreted more narrowly than
Constitution’s “arising under.”
Holmes Group v. Vornado→ Interpretation of arising under in §1338. Counterclaims including federal issue are not
sufficient in establishing federal jurisdiction b/c they do not comply with the well-pled complaint rule. Dissent argues
that had the case actually adjudicated patent law on appeal (knew federal law), then it should be in federal ct.
Merrell Dow Pharmaceuticals v. Thompson→ When complaint alleges violation of fed statute as an element of a state
cause of action & Congress has determined no private fed cause of action for that statute, complaint doesn’t state a
claim arising under federal law. Dissent → Congressional intent of wanting federal cts. to have jurisdiction can be seen in
that statute is overseen by federal regulator- silence does not mean anything
Smith v. Kansas City → ∏ sued to enjoin trust co. from investing bonds. Bonds not valid b/c federal statutes which created
them are unconstitutional→ Held: “arising under”
 Broader interpretation than Mottley
 Federal law interest here was very important
C. DIVERSITY JURISDICTION… AT TIME OF FILING!!
 Article III §2: Between citizens of different states (minimum diversity). Important if interpreting the Constitution.


§1332: Diversity of Citizenship and Amount in Controversy (COMPLETE ON SIDES OF “V”)
o
District cts have jd over all civil actions where controversy exceeds $75,000 & is b/w:
 1. Citizens of different States
 2. Citizens of a State and citizens and subjects of a foreign State
 3. Citizens of different States and in which citizens or subjects of a foreign state are additional parties
 4. A foreign state, as ∏ and citizens of a State of different States
 For the purpose of this section, an alien admitted to the US for permanent residence shall be deemed
a citizen of the State in which such alien is domiciled.
o
(b) except when expressly provided otherwise in US statute, where the original  is found to be entitled
to less than $75,000, the DC may deny costs to the  and, in addition, may impose costs on the 
o
(c) For this statute
 1. Corporation should be deemed a resident of its state of incorporation and PPB
 2. Legal rep. for infant, decedent, and incompetent will have their state of citizenship
Strawbridge→ if even one ∏ has same citizenship of one ∆- no diversity (complete diversity)
o W/o complete, people would add ∏ or ∆ get diversity → this is more efficient
o Prejudice concern is no longer an issue if people from same state on both sides
1. DIVERSITY
a. Purpose of Diversity Jurisdiction
o Unbiased forum→ Avoid prejudice of outsiders
 Assumption that state has bias against non-resident
o
 Recently been questioned
 Greatest risk may be in ∏s state
Beneficial for fed cts to gain experience in st law—fed cts hearing only fed issues; becoming too specialized
b. The Meaning of State Citizenship
o Individual’s State Citizenship (CL) (Hawkins)(Redner)
 Domicile = Physical presence + intent to reside indefinitely
 Subjective intent is necessary not sufficient; must coincide w/ presence!!!
 No definite intent to leave to make a home elsewhere means person’s presence in state is open-ended
 If move somewhere temporarily your domicile is the last place you were domicile
 LOOK AT INTENT AT TIME OF FILING
 FACTORS TO CONSIDER: Place of employment, voter/car registration, driver’s license, current
residence, presence of other property or intangible interests, bank accounts, club memberships,
mailing address, contribution to bills, buying furniture, banking account, address on death certificate,
auto insurance, loan, title on car, paycheck stubs, not looking for a house elsewhere, law office, law
license
Corporate Citizenship §1332(c)→ Place of Incorporation AND PPB
 Nerve Center→ where executive & administrative headquarters
PPB Test
 Muscle Center→ everyday business activities; most contact w/ public; perceived as local; conducts
most activities
 Some courts look to nerve, muscle, and others to both
 Can’t pick if have 2 places
c. Other Notes
o BURDEN OF PROOF→ w/ person trying to establish jd; preponderance of evidence or no jurisdiction (Redner)
o When attacking diversity:
a. Facial attack → not enough information to establish (Redner: don’t know citizenship of ∆ and we
do not know what state ∏ is a citizen)
b. Challenge actual facts upon which allegation are based → Factually you are wrong (Hawkins).
Might look like a 12(b)(1) but turns into an SJ b/c need to introduce new information
o Diverse alimony & child custody will not go to federal courts
o DC and other territories considered states
o Does not matter where the court is
o In diversity analysis, can disregard parties that have SMJ for other reasons
o Court may dismiss if add non-diverse parties b/c that is a back door way of getting out of complete diversity
o
Hawkins v. Masters Farms, Inc.→ Court looked at representations on various legal forms to determine ∏s intent. No evidence
showed that he was planning on moving in the short period→ general desire. In addition, he bought a house in KS, showing
intent to stay.
Redner v. Sanders→ (1) B/c ∏ is not a French citizen (a)(2). (2) Ct found that ∏ didn’t meet burden of proof to show that he was
a citizen of CA. B/c he was previously a citizen there, ct wanted to know more about his intent in staying in France (e.g., what
type of residence he had in France, if he had family there, any professional activities there). So, he did not satisfy (a)(1) either.
Saadeh v. Farouki→ No diversity b/c statute was meant to limit diversity jd. not broaden it. Congress did not intend to allow
diversity jurisdiction when 2 aliens—provision meant to restrict diversity jd. in cases b/w US citizen of a state & aliens living in
that state who would previously not have been “citizens” of same state. Allowing 2 aliens to be in a suit may violate Constitution.
2. AMOUNT IN CONTROVERSY
a. BACKGROUND
 Want to limit cases that get to federal court particularly in diversity jurisdiction
o No other options: not necessarily more or less important
o But, if a lot in controversy, may involve interstate commerce and interstate interest
 Look at amount in complaint; does not mean no SMJ if ∏ loses or is awarded <75K
b. RULES RE: AGGREGATING AND COUNTERCLAIMS
 ∏ has 2 claims vs. ∆ → YES
o Look at # of injures and # of remedies
o Ex: Compensatory + punitive ok (if punitive damages more sig case & federal ct. should hear)
o Ex: N and breach of K for different injuries






∏ cannot aggregate two theories for same injury
o Look at whether recovery will only be for 1
o Ex: N and SL for same injury
2 ∏s vs ∆ → NO
∏1 over the amount & ∏2 is under → ∏1 can and ∏2 supplemental jd. (probably)
o Under supp. jd rules, some cts say if 1  satisfies, others may add claims (under controversy)
Many ∏s and ∆s → Only in rare case where there is an “undivided” interest
For an injunction, evaluate:
1. Value to ∏ if ∆ complies
2. Cost of ∆ to comply
3. Look at value/cost for invoking party
For counterclaims:
o ∏ > $75,000 → compulsory cc may be heard regardless of amount; permissive requires indep. jd
o ∏ < $75,000 → unresolved
c. STANDARD OF REVIEW
 Weighted to ∏ → Allegation must be in good faith
o However, court may deny costs of ∏ & impose ∆s costs on ∏ if less remedy in end §1132(b).
 Amount is what is in controversy not what is actually recovered
 Punitive damages are subjectively assessed by jury
 Take at face value unless LEGALLY CERTAIN that claim is for less
o Fairly high standard to disprove
o Ex: No punitive damages in a N claim in that jd
o Ex: Statutory basis limited (in BC, WV limited wrongful death claim to $10k/person)
D. CHALLENGING THE FEDERAL SMJ




For diversity question, move for dismissal under 12(b)(1)
For federal question you can use either:
o 12(b)(1) → there’s no jurisdiction b/c there’s no claim arising under federal law
o 12(b)(6) → there’s no federal claim so there is no federal jurisdiction
Court can raise SMJ sua sponte b/c so fundamental and not waived under Rule 12
o Federalism→ limit federal power; maintain notions of limited power & avoid infringing on state power
o PJ is an individual right → we give chance to raise but they have to do it right
When ∆ combines SMJ and PJ challenges:
o SMJ dismissal they can refile the suit in state court
o PJ dismissal they are precluded from refiling in state court
E. SUPPLEMENTAL JURISDICTION
1. BACKGROUND
 Broadens federal jd→ stretched federal jd to cover parts of cases that if brought independently would not have SMJ
 STILL MUST MEET PERSONAL JURISDICTION AND SMJ
O Some court say w/ supplemental jd, need pjd over each claim
O Other courts say pjd over one claim w/ ∆, then all supplemental claims are ok (practical approach-- ∆ can’t
claim inconvenience)
 Anchor claims: independent jurisdiction
 Supplemental claims: no independent jurisdiction
 When evaluating supplemental and diversity → look at likelihood brought to back door—by ∆ probably ok
 ADVAN→ Allows a single suit to adjudicate multiple claims against multiple parties and permits litigation to reflect
some of life’s complexity
 DISADVAN→ Litigation can become intricate
2. PROVISIONS
 CONSITUTIONAL: ARTICLE III § 2
 STATUTORY: SUPPLEMENTAL JURISDICITON §1367
(a) When district courts have original jd, they shall also have supplemental jurisdiction over all other claims
that are so related in the action within such original jd that they form part of the same case or controversy
 Common nucleus of operative facts—same transaction or occurrence= same Const. cases
i. Logical relation b/w claims? Would  reasonably expect to try claims all at once?
ii. Does it make sense from a judicial economy perspective?
o Is state claim closely tied w/question of fed policy?
o Will it confuse jury to hear the theories together?
(b) In case based solely on diversity, ∏ may not be joined by 14 (3rd party), 19 (Joinder of Persons needed for
Just Adjudication), 20 (Permissive Joinder of Parties), or 24. Irrelevant when federal anchor claim.
 Trying to uphold complete diversity→ prevent back door maneuvers
 Does not apply to s right to sue others under Rules 14, 13(a), 13(g), 13(h) (Counterclaims/Cross-claims)
 Courts would probably allow supplemental jd over cross-claims, counterclaims, and 3rd party claims
that seem to violate this statute (b/c they violate diversity requirements) but don’t violate the policies
behind diversity jd-- ∆ was probably not purposely trying to find back door way to avoid diversity statute
(c) Federal Courts may decline Supplemental claims if:
1. Novel or complex issue of state law
2. State claim predominates
3. All original claims over which district ct. had jd. have been dismissed
4. Exceptional circumstances
(d) Period of limitations for any claim asserted under subsection (a), and for any other claim in the
same action that is voluntarily dismissed at the same time as or after the dismissal of the claim
under (a), shall be tolled while the claim is pending and for a period of 30 days after it is
dismissed.
Jin v. Ministry→ Defamation claim did arise out of the same transaction as civil rights and RICO claims. CTC used 2 nd argument vs.
jurisdiction. Tried invoking (c)(1) → too complex to avoid all different state laws. Complexity (important and unsettled issues) ≠
difficulty (time consuming). Focuses on the substance of state law issues
F. REMOVAL AND REMAND
1. REMOVAL
 ONLY AVAILABLE TO ∆S and they all must agree
 Venue rules do not apply to removed cases
 Does not effect ∆s right to raise any objections or defense (ex: personal jurisdiction)
a . Rationale Behind Removal
 Jurisdiction is intended to protect both parties (ex: protect vs. bias of state court)
 Exception to ∏ as master of his claim, though he still chooses state
b. Rules and Procedure of Removal
1. § 1441…… When can you remove? DETERMINED AT TIME OF NOTICE OF REMOVAL
(a) Brought in state ct but federal court originally could have jd.; removed to district court in “same” district
 Rule not meant to expand federal jd.→ must have federal jurisdiction originally
 Look at well-pleaded complaint, etc.→ doesn’t matter if later know involves federal issues
 All ∆s must agree on this
 Only for original ∆s, not for cc
(b) Founded solely on federal claim→ can be removed regardless of parties’ citizenship
Founded solely on diversity claim→ can be removed if NO ∆ is a citizen of state where action is brought
 No prejudice then
(c) Whenever supplemental jd., entire case may be removed or court can remand where state law predominates
(d) If ∆ is foreign, state suit can be removed to district court and tried w/o jury
(e) District ct. not precluded from hearing case b/c state ct. it was originally in didn’t have jurisdiction over claim
2. § 1446…… Is removal proper?
(a) ∆s seeking to remove shall:
 File in the district court where the action is pending



File a notice of removal pursuant to Rule 11 of FRCP
Include a short statement of grounds for removal, a copy of all process pleadings, and orders
∆ can allege in notice facts needed to show grounds (ex: $ if not in complaint and diversity claim)
(b) Notice shall be filed ……. BURDEN ON ∆ TO FIND OUT IF CAN REMOVE IN TIME

W/in 30 days after ∆ receives initial pleading

Or w/in 30 days after service of summons upon ∆ if such initial pleading has been filed in ct. & is not
required to be served on ∆

Whichever period is shorter

If case only removable after amendment, removal notice may be filed w/in 30 days after ∆ receives
amended pleading
o Otherwise could get federal question in by asserting state and amending

If based on diversity jurisdiction--then there is a 1 year SOL on removal
(d) Promptly after filing the notice ∆ shall give written notice to all adverse parties and shall file a copy of the
notice with the clerk of the state court, at which time removal is complete and state court loses jd. until case is
remanded
2. REMAND→ NOT A DISMISSAL (∆ DOES NOT NEED TO WORRY ABOUT NEW SOL, FILING FEE, ETC.)
§1447: Procedure after Removal Generally:
(c) A motion to remand the case on the basis of any defect other than lack of SMJ shall be made w/in 30 days after
filing notice of removal (if defect is SMJ can be made at any time)
(d) Remand is not reviewable on appeal unless it is issue under §1443
 No problems b/c state courts have general jurisdiction—no real harm
 ∏ just goes back to where state where originally filed
(e) If after removal ∏ tries to join ∆s that would destroy SMJ, ct can deny OR permit it and remand back to state court
 Court will look at reasons behind the change:
o if major change→ allow b/c if don’t will have related state & federal cases (more efficient to combine)
o if minor change→ important to change
o Look at good faith: length of time, efficiency, belated discovery of a claim, etc.
Caterpillar v. Lewis→ Case errantly removed when not complete diversity, some parties dropped out and created complete
diversity, so there was SMJ by time of final judgment
 ∆ removed before having complete diversity to meet SOL under 1446(b)
 As long as district ct had SMJ by time it rendered verdict, judgment stands despite lack of SMJ at time of ∆’s removal
 CT’s reasons were efficiency and finality: remanding case after judgment would have imposed ↑ cost on dual court system
and made the whole thing inefficient
V. JOINDER


Court can find properly joined but separate at trial if problem w/ embarrassment, delay, or other types of prejudice to
1 or both parties under Rule 42b→ may be convenient to combine pleadings, discovery, and motions and then
separate. Checks 18, 20
Permissive claims parties b/c:
o ∏ master of suit: which ∏ would we pick?
o SMJ and PJD problems
o Other procedural problems
Must satisfy SMJ & PJD (when add new parties)
A. JOINDER OF CLAIMS
SMJ:
1. JOINDER OF CLAIMS AND REMEDIES Rule 18
(1) Federal ? (2) Diveristy + $ (3) Supp. jd.
 Very broad
 Party may join with an original claim any additional claims (related or unrelated)
 Need one proper claim 1st
 For any party seeking relief in a counterclaim, cross-claim, or 3rd party claim (not just original ∏)
 Permissive (but may waive if res judicata later applicable)
 RATIONALE: once in parties should be allowed to settle all claims in 1 suit
 Need SMJ over all claims (already a party so pjd N/A)
2. COUNTERCLAIM AND CROSS-CLAIM Rule 13
a. COMPULSORY COUNTERCLAIMS→ B/w any opposing parties already in suit (not necessarily original ∆)
 Must arise out of same transaction or occurrence
 Waives if don’t bring (res judicata)
 Determining if debt counterclaim is compulsory: (Plant)
o Does it raise same issues of fact and law?
o Would ∆ be unable to bring claim w/o compulsory cc rule?
o Will same evidence support/refute both claims?
o Logical relation b/w claim & cc? Arise from same aggregate of operative facts?
 Have SMJ b/c compulsory (already a party so pjd N/A)
b. PERMISSIVE COUNTERCLAIMS→ B/w any opposing parties already in suit (not necessarily original ∆)
 Unrelated claims that can be brought
 Court has power to separate (See Rule 42b)
 RATIONALE: Not necessarily efficient and consistent→ want to give ∆ same power as 18 may
give to ∏s and cut costs for ∆ filing new suit
 Need SMJ—diversity or supp. jd. (already a party so pjd N/A)
g. CROSS-CLAIMS AGAINST CO-PARTY→ Parties on same side of “v”
 Common transaction or occurrence
 Permissive
 After 13g used, 13a & b can be applied b/c between opposing parties
 Not adding a party just a claim
 Have SMJ b/c related (already a party so pjd N/A)
h. JOINDER OF ADDITIONAL PARTIES→
 Original ∆ can add new parties in cc’s or cross-claims if in follow Rule 19 & 20 (related!!)
 Have SMJ b/c related + Need PJD
Plant v. Blazer Financial→ Using the logical relations test and evidence test, court found that ∆s counterclaim were compulsory→
loan agreement was same transaction. Allowing joinder upheld rational:
 Efficiency→ would otherwise be one state and one federal case
 Legislative intent→ Leg. never expressly excluded cc & this is not a bizarre circumstance. But, purpose of act is to protect ∏s
(don’t want a disincentives)
 Fairness to ∆: if don’t allow, ∏ may get $ and never pay back debt
B. JOINDER OF PARTIES (SEE ALSO 13H)
May not want to (can not) sue all parties….
1. If K claim , he does not have K with other ∆ (see Price)
2. Procedurally, may want to keep complete diversity so don’t sue all ∆s
3. May not be personal jurisdiction against the defendant
1. PERMISSIVE JOINDER OF PARTIES Rules 20 (Mosely)
 Initial joinder of parties by original ∏ or ∆ (so may not add new parties!!)
 ∏ together→ ok if injuries and/or theories are different
1) Right to relief arises out of same transaction or occurrence
2) Common question of law or fact
 ∆s together→ Allowed to sue even if don’t know which one
1) Right to relief asserted vs. each arises from same transaction/occur.
2) Common question of law or fact
 Permissive
 Court may limit w/ Rule 42b→ adding parties is huge burden!!
 Need SMJ + PJD + Venue
2. THIRD-PARTY PRACTICE Rule 14 (Price)
 Limitation to ∏ as master of case (but not extremely liberal b/c ∏ is the master)
 Once 14 is met, Rule 18a applies (related or unrelated claims)
 Tactically, may be helpful for ∆ to implead (adds time and lets him pay less)
 If ∆ impleads→ will always have SMJ b/c related + need PJD
 If ∏ impleads → will never supp. jd if original claim based solely on diversity + need PJD
a. ∆ CAN IMPLEAD 3RD PARTY ∆ IF DERIVATIVE CLAIM
1. INDEMNIFICATION (K): If I’m liable X is going to be held responsible too
2. CONTRIBUTION (tort): X, as joint tortfeasor, should contribute to paying damages
o MAY be liable for all or part of claim
o Must implead w/in 10 days of original answer or else w/ leave of ct.
o
o
o
o
o
Can implead multiple 3rd parties
Do not allow “him not me” excuse—either/or proposition not allowed
Jurisdiction must allow these claims
3rd party ∏ and ∆ must follow all pleading rules
3rd party can assert counter to 3rd party claim or defenses to ∏s original claim
o
6th sentence→ 3rd party ∆ can assert claims against ∏ if related
 Does not allow adding other parties (vs. 13h)
 Always have SMJ b/c related (1367b doesn’t apply b/c 3rd party ∆ is a ∆) (pjd is N/A)
th
7 sentence→ ∏ can assert claims against 3rd party ∆ if related
 Does not allow adding other parties (vs. 13h)
 Need SMJ (will never have supp. if original based on diversity b/c 1367b) (pjd N/A)
9th sentence→ 3rd party can implead a 4th party
o
o
b. WHEN COUNTERCLAIM IS ASSERTED AGAINST ∏ HE MAY IMPLEAD

OBJECTING TO RULE 14 IMPLEADER
1. Improper→ No derivative claim (no contribution or indemnification)
Untimely→ Not w/in 10 days of original answer w/o obtaining leave of court. Balancing of equities
(prejudice & fault w/ fair & economical)
o Efficiency: related?
o Avoidance of repeated suits and inconsistent judgments
o Delay in seeking: how long? diligence? on purpose?
o Complication of issues
o Prejudice to ∏: from impleading sympathetic 3rd party
o Time in case: at trial? beginning of discovery?
**If have pjd for federal claim that allows for nationwide service and add state claims→ do not necessarily have pjd.
Courts are split on whether need separate pjd
 B/c ∆ has to defend other claims→ no violation of due process since has to be there anyway
 Claim by claim specific and LA statute does not extend that far on this claim
Mosley v. General Motors Corp.→ ∆ files motion to sever under Rule 21/42b → arguing for misjoinder of parties. Court finds
joinder is appropriate under Rule 20 by assuming broad definitions…
Logical Relation test: company-wide discrimination policy is same transaction for each P
Common question of law/fact test: general discrimination policy is common to all P’s
**Court is kind of making a substantive assumption.
AT&T→ Court under rule 20, found there was no common transaction. Court finds contexts to be too different to join→ no
concrete argument for a discriminatory policy. Goes in exactly the opposite direction than Mosley
Price→
Owen Equipment & Erection Co. v. Kroger→ In a diversity case, the federal court does not have jurisdiction over the ∏s
claim against a third party ∆ where ∆ is a citizen of the same state. Concept is later codified in 1367b.
D. SUPPLEMENTAL JURISDICTION (again) §1367(a)
a. Federal ? Jurisdiction: Ct has supp over all claims that are so related to original claims that they form same case
 This means that they arise from common nucleus of operative facts
b. Solely Diversity Jurisdiction: Ct does not have jd. over claims made by PLAINTIFFS vs. persons joined under
(forbids ∏s from breaking complete diversity, but allows ∆s too—about bias to them)
o Rule 14—3rd party impleader
o Rule 19—compulsory party joinder
o Rule 20—permissive party joinder
o Rule 24—intervention
D. TESTS
A. SAME TRANSACTION OR OCCURRENCE TEST [13(a), 13(g)]→ LIBERAL APPROACH
1) Logical Relationship [broader test]
 Plant: even though different issues of law and fact were posed, claim was found to be compulsory because
claims arose out of a “single aggregate of operative facts, the loan transaction”
2) Same evidence and legal issues Focus on whether 2 claims would require the same evidence to prove or involve the application of the
same law [narrower test] (probably only used for 13(g))
B. SAME TRANSACTION/OCCURRENCE & COMMON QUESTION OF LAW AND FACT [13(h), 20]
1) Same transaction (logical relationship)
 Interpret broadly to allow (e.g. pattern of discrimination vs. employees)
 Interpret narrowly to prevent joinder (e.g. P1 fired by X1 and P2 fired by X2)
2) Common question of law and fact
 Interpret broadly to allow (e.g. pattern of discrimination)
 Interpret narrowly to prevent (e.g. racial & gender discr. or different methods of discrimination)
General Arguments for and against
 ADVAN: Efficiency → decide related claims in one case; avoid duplicative effort and time
Accuracy→ give jury all related information
Consistency→ avoid conflicting decisions on same topic
Fairness → maybe ∏ needs to bring multiple claims to get full remedy (ex: BC)
→ ∆ should be able to counter claim when necessary
 DISADVAN: Not efficient → too many cases and too long to litigate
Accuracy → too complex for juries and judges to figure out
Fairness→ individual parties may be dragged in to unrelated claims