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Jurisdiction - https://www.law.cornell.edu/rules/frcp
In order for a court to make a binding judgment on a case, it must have both subject matter
jurisdiction (the power to hear the type of case) as well as personal jurisdiction (the power over the
parties to the case)
Most state courts are courts of general jurisdiction, whereas federal courts have limited jurisdiction.
That is, state courts are presumed to have power to hear virtually any claim arising under federal or
state law, except those falling under the exclusive jurisdiction of the federal courts.
A. Litigation in the Federal Court
Subject Matter Jurisdiction & Personal Jurisdiction
(Ways that a case enters into federal court)
1. Federal question jurisdiction
a. The case arises under federal law giving a right to sue
b. “Well-Pleaded” Complaint Rule
1. The plaintiff's "well pleaded complaint" must state that the defendant
directly violated some provision of the Constitution, laws or treaties of
the United States
Following Motley, Supreme Court starts to fret about the “over-inclusiveness” of
the Motley Rule
1. Supreme Court fears many cases will satisfy Motley Rule - claim
founded on state law but with necessary federal ingredient that really do
not belong in federal court in the Supreme Court’s estimation
2. Supreme Court was NOT about leaving them in state court
3. Federal Law creates broad framework
c. Federal question jurisdiction extends to a state-law claim that:
Supreme Court added these additional hurdles to clear listed below on top of the
“well-pleaded” complaint rule
ii. The federal court has subject-matter jurisdiction over the claim embedded in state
law cause of action only if the federal issue meets the test outlined in Grable:
1. Necessarily raised federal issue (Motley is not a separate test, this factor
is Motley)
2. Actually disputed
3. Federal question has to be substantial (non-trivial)
a. Has to be substantial to the federal system
4. Capable of resolution in federal court without disrupting the federal-state
balance approved by Congress
Section 1331:
1. The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States
d. Grable
Whether state law cause of action qualifies for federal action:
1. “Does a state-law claim necessarily raise a stated federal issue, actually
disputed and substantial, which a federal forum may entertain without
disturbing anu congressionally approved balance of federal and state
judicial responsibility”
If a complaint satisfies the federal question requirements to be in federal court, the court cannot send it
back to state court
a. Once it meets the statutory requirements to be in federal court, it has the right to be heard in
federal court
2. Diversity Jurisdiction
28 U.S.C. §1332 requires: complete diversity + amount in controversy over $75,000 (only look at
plaintiff’s claims for amount in controversy)
a. Each party is from a different state
Citizenship is determined the day of filing
1. Even if plaintiff moved just to be diverse, as long as the citizen is living
in a different state on the day of filing they are citizens of different states
Domicile requires presence with an intent to stay permanently or indefinitely
Burden of proof of location is on the party asserting diversity jurisdiction
Forum-Defendant Rule - prohibits removal of a case involving a forum-state
defendant from being removed from state court on diversity grounds
1. Citizen of state A sues B (a citizen of state B) in state court in state B on
a state claim, asking for $100,000, B may not remove the case to federal
court, because B is a citizen of state B 28 U.S.C. § 1441(b)(2)
b. The amount is controversy is over $75,000
c. Corporation Citizenship
Both the state(s) in which it is incorporated and the state in which it has its
principal place of business
Section 1332(c)(1) states that a corporation is a citizen of any state “by which it
has been incorporated and of the State where it has its principal place of
business” Hertz case
d. Aggregation Basics
Injunction is factored in as part of the $75,000
One plaintiff v. one defendant
1. Plaintiff may aggregate all her claims against D, even if claims are
a. Amount in controversy is total of all those claims
b. The claims do not need to relate to a common nucleus of fact,
that is only for supplemental jurisdiction
Many plaintiffs v. one defendant
1. General rule of thumb, no aggregation for multiple plaintiffs
2. Each has to have a claim against defendant, cannot each use amount to
try to add up to $75,000
3. Common undivided interest, for example, landlord being sued by
multiple tenants for a leaky roof, then it would be an aggravated amount,
otherwise no
Plaintiff v. multiple defendants
1. Unless jointly and severally liable, plaintiff may not aggregate too-small
claims against defendants
a. Two cars drag racing against one another hit a pedestrian, that is
when you can aggregate claims
2. Look ONLY at the plaintiff's claim, do not look at defendant’s
3. Removal Jurisdiction
a. Jurisdiction is presumptively concurrent
Either a state of federal court can hear (nearly) any federal question or diversity
b. It is the plaintiff’s choice of court
If plaintiff could have filed in federal court, the defendant is able to move the
case to federal court
c. Defendant’s choice of removal
After the plaintiff sues in state court if there is federal question or diversity the
defendant has the option to removes it to federal court
Plaintiff can file a motion to send it back if there were no federal claims
d. Forum defendant exception in diversity of citizenship
If a defendant is sued in their own state’s court, they cannot remove to the home
state’s federal court
“You can remove to federal court unless one of the defendants is at home in the
forum state”
Plaintiff can choose federal court in their own home state
1. This is a way we disable defendants in ways we do not disable plaintiffs
A defendant sued in its own state does not require protection from possible statecourt prejudice, which is what removal is meant to provide
e. If in federal court, you CANNOT remove to state court
f. All defendants must consent to removal
If there are 8 and only 7 say yes to removal then they can not do so
g. Notice must be within 30 days to remove it for non-diverse cases (federal question cases)
h. 1441 b Diversity cases:
No cases may be moved after one year after the case has been commenced in
state court
i. Subsequent acts that do not destroy the federal court’s subject-matter jurisdiction do not
destroy removal jurisdiction
In Spencer, at the time of removal, there were no local defendants present in the
action, therefore no remand was required
A defendant does not have forever to remove a case to federal court. If the complaint
states an amount in controversy over $75,000 and the parties are diverse, then the
defendant must remove the case within 30 days of service. 28 U.S.C. § 1446(b)
4. Supplemental Jurisdiction
Gives jurisdiction over claims it otherwise would not have had the power to hear, these claims tag along
and otherwise would not be in federal court
a. The original claim must fall under federal question jurisdiction or diversity jurisdiction
A transactionally related state law claim that comes there jurisdictionally
b. Supplemental jurisdiction is barred when plaintiff tries to add joinder that breaks
complete diversity
c. If you are walking and a bur attached itself to your pant leg, it was not invited (by the
federal court) but in it comes with you to federal court anyways
d. Pendent jurisdiction
There is a federal claim of “substance sufficient to confer” subject matter
jurisdiction on the court, and
The federal and state claims “derive from a common nucleus of operative fact”
e. Gibbs
Plaintiff sues in federal court
1. One claim was under federal law, related claims regarding violation
under federal law
2. In this case the federal claim was dismissed before the state law claims
were decided
The Supreme Court
1. It was indisputable that there was a federal claim
2. Claims arose from the same nucleus of operative fact
3. At the time of filing jurisdictional facts are decided - you can check the
4. The decision of the district court not to dismiss the state claim is
f. 28 U.S.C. 1367(c) the district courts may decline to exercise supplemental jurisdiction
over a claim if -These are all considerations in determining whether to exercise supplemental jurisdiction (it also has
discretion to continue, it is not required to dismiss the state claim)
The claim raises a novel or complex issue of state law
The claim substantially predominates over the claim or claims over which the
district court has original jurisdiction
1. If the size of the bur is bigger than my body
The district court has dismissed all claims over which it has original jurisdiction,
1. Before the state claims are adjudicated, the district court may decide to
decline supplemental jurisdiction at that point
In exceptional circumstances, there are other compelling reasons for declining
g. Pendent Party Jurisdiction (can I add a party)
FRCP 1367:
1. (b) In any civil action of which the district courts have original
jurisdiction founded solely on section 1332 of this title, the district courts
shall not have supplemental jurisdiction under subsection (a) over claims
by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of
the Federal Rules of Civil Procedure, or over claims by persons proposed
to be joined as plaintiffs under Rule 19 of such rules, or seeking to
intervene as plaintiffs under Rule 24 of such rules, when exercising
supplemental jurisdiction over such claims would be inconsistent with
the jurisdictional requirements of section 1332.
2. (c)The district courts may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if—
a. (1)the claim raises a novel or complex issue of State law,
b. (2)the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction,
c. (3)the district court has dismissed all claims over which it has
original jurisdiction, or
d. (4)in exceptional circumstances, there are other compelling
reasons for declining jurisdiction
Congress enacted this statute, 1367, for determining
Before you start, look at your claims and determine if each claim satisfies federal
question or diversity jurisdiction
1. If each claim satisfies and can be in federal court on its own, you do not
need supplemental jurisdiction
Next step, do you have an anchor claim?
1. A civil action in which court should have original jurisdiction (diversity
or federal question)
Do you have additional claims that do not qualify but are so related they form
part of the same case or controversy?
1. Part of the same operative nucleus of fact
2. You do not have supplemental jurisdiction if not
If both are satisfied above, we move to subsections (b) and (c)
IF anchor claim is a diversity claim ask questions below, IF anchor federal
question claim, SKIP below
1. Jurisdiction founded on 1331, b does not apply
(b.)In any civil action of which the district courts have original jurisdiction
founded solely on section 1332 of this title, the district courts shall not have
supplemental jurisdiction under subsection (a) over claims by plaintiffs against
persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil
Procedure, or over claims by persons proposed to be joined as plaintiffs under
Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of
such rules, when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section 1332
1. If you satisfy one of these, check to make sure it does not break complete
2. Two ways to break complete diversity that keep us out of supplemental
a. Claims by plaintiff against these persons made parties
b. By persons purposed to be defendants under the rules
3. Supplemental claims are by plaintiffs or would be plaintiffs and if those
claims break diversity you cannot exercise supplemental jurisdiction
4. Joinder Rule:
a. New plaintiff under rule 19 or someone seeking to become a
plaintiff under rule 24
b. They only do not have supplemental jurisdiction if the new claim
would destroy complete diversity
Supplemental Diversity Hypotheticals:
1. Plaintiff sues diverse defendant on a state-law claim for more than $75,000 and defendant impleads under
Rule 14 a third party who is from the same state as the defendant. Supplemental jurisdiction over the
defendants state-law claim against the third party for contribution or indemnification?
a. Yes, the third party is still from a different state than that of the plaintiff and does not break
complete diversity
2. Plaintiff sues (diverse) defendant on a state-law claim for more than $75,000 and defendant impleads under
Rule 14 a third party who is from the same state as plaintiff. May the original plaintiff bring a state-law
claim against the impleaded party?
a. No, no complete diversity, claims by plaintiff that break supplemental jurisdiction cannot be heard
3. Plaintiff sues (diverse) defendant on a state-law claim for more than $75,000, and defendant impleads
under Rule 14 a third party who is from the same state as the plaintiff. Can the third party bring a state law
claim against the original plaintiff if it arises out of the same transaction or occurrence as the plaintiff’s
claim against the defendant?
a. No, in this case the new Rule 14 person breaks complete diversity in this case
4. Plaintiff sues (diverse) defendant on a state-law claim for more than $75,000 and a third party from
defendant’s state wishes to intervene as a plaintiff under Rule 24. May she?
a. I believe no
FRCP and Subject Matter Jurisdiction
FRCP 12(h)(3) - If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action
FRCP 8(a) - Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional support
FRCP 12(b) - How to Present Defenses. Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required. But a party may assert the following defenses by
motion: (1) lack of subject-matter jurisdiction
(power over the defendant)
Personal jurisdiction means the judge has the power or authority to make decisions that affect a
person. For a judge to be able to make decisions in a court case, the court must have “personal
jurisdiction” over all of the parties to that court case
Personal jurisdiction: epic fight of state sovereignty and fairness
Jurisdiction over parties
1. Usually non resident defendant
Generally needs two things: Long arm statute and constitutional due process (fairplay)
If the State B long-arm statute authorizes the exercise of personal jurisdiction over the truck driver, then federal
courts in State B may also exercise personal jurisdiction over the truck driver, provided that doing so is
consistent with due process.
Exercise of personal jurisdiction requires:
1. The first step in the analysis of personal jurisdiction is to identify the statutory or rule-based
source of the court’s authority
2. The second step is to determine whether the exercise of jurisdiction is consistent with the
3. Lastly, discuss the requirement of notice
For most cases filed in federal court, there will be personal jurisdiction over the defendant if:
a. A there would be personal jurisdiction over the defendant if the case had been filed in a state
court in the same state
Specific Jurisdiction
(minimum contacts)
1. Pennoyer’s Legacy
a. Exercise of personal jurisdiction must comport with the due process clause of the 14th
Amendment of the U.S. Constitution
b. In Pennoyer, it not relevant today because it required strict territorial boundaries for
c. The history of personal jurisdiction from Pennyover through International Shoe, the court
saw a “clearly discernible” trend “toward expanding the permissible scope of state
jurisdiction over foreign corporations and other nonresidents”
2. International Shoe
a. Still followed today
Supreme Court held there was jurisdiction in this case
b. “Due process requires only that, in order to subject a defendant to a judgement in
personam, if he be not present within the territory of the forum, he have certain
minimum contacts with it such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice”
The minimum contacts inquiry is only the first step in the inquiry. In the second step,
the court must determine that the exercise of jurisdiction comports with traditional
notions of fair play and substantial justice.
1. Minimum contacts
a. Continuous and systematic activities
b. Relationship between those contacts and the subject of lawsuit
Most important quote in personal jurisdiction doctrine
c. Corporation has a different test for citizenship
In this case, they looked at the activities in forum state where they gave rise to
the liability sued on
d. Specific Jurisdiction
Takeaway of Shoe
Claim “arises out of or related to” activities in forum state
e. General Jurisdiction
Claim “arises from dealings entirely distinct” from contacts in forum state
f. Washington State was able to show minimum contacts
Business resulted in large volumes of business and they received benefits and
protection under Washington law
g. Shoe we know that minimum contacts test differs depending on whether eclaims are
related or unrelated to those contacts
3. Kinds of jurisdiction:
a. In rem (against the property)
If you own property in the state, obviously you are keeping track of everything
that happens with it, therefore attaching that property is a way of giving
appropriate notice and establishing jurisdiction over non-state defendant who
owns property in the state
b. In personam (against the person)
1. Being physically present in the state
2. Rarely will another state be able to exercise jurisdiction
3. Emphasizes territorial boundaries
a. States as separate sovereigns in our federal system
4. McGee v. International Life Insurance Co.
a. Personal jurisdiction was allowed
There was a bilateral contract and state interest
1. California has an interest in protecting its residents
5. Hanson
a. Personal jurisdiction was not allowed
Single contact with forum state was a unilateral interest
Making an offer
Stream of Commerce Cases
Example of Amazon - not being liable where Amazon sends it off to, only liable where Amazon
warehouses are
Etsy - since Etsy has control of where they send all of the products you would be liable
6. World-Wide Volkswagen Corp. v. Woodson
a. Two underlying principles of personal jurisdiction
Protect defendant from brudent of distant litigation
Keep state court within their limits
b. We get a two step analysis:
1. Minimum contacts
a. Is the defendant’s conduct and connection with the forum State such that
he should reasonably anticipate being hailed into court there?
b. Affiliating circumstance with the forum (court here found there were
1. Sales
2. Perform services
3. Solicit business
4. Advertising “reasonably calculated to reach the state”
c. Purposeful availment
“When a corporation purposefully avails itself of the privilege of
conducting activities within the forum State, it has clearer notice
that it is subject to suit there”
a. Tests for fair play and substantial justice
3. Five factors weigh into the reasonableness test (primary concern is the burden on
the defendant)
a. Burdens the defendant to be hailed in court there (always a primary
b. Forum state’s interest in adjudicating the dispute
c. Plaintiff’s interest in obtaining convenient and effective relief
d. Interstate judicial system’s interest in obtaining the most efficient
resolution of controversies
e. Shared interest of several States in furthering fundamental substantive
social policies
4. “Foreseeability’ alone has never been a sufficient benchmark for personal
jurisdiction under the Due Process Clause”
a. For example, a car manufacturer driving a car into another state is not
foreseeability enough
b. Foreseeability matters insofar as “the defendant’s conduct and
connection with the forum State are such that he should reasonably
anticipate being haled into court there”
5. The forum State does not exceed its powers under the Due Process Clause if it
asserts personal jurisdiction over a corporation that delivers its products
into the stream of commerce with the expectation that they will be
purchased by consumers in the forum State
6. A manufacturer that delivers its products into the stream of commerce with the
exception that they will be purchased by consumers in the forum State is subject
to jurisdiction
7. The unilateral act of the consumer in taking the product to the forum state is
insufficient to satisfy minimum contacts.
What we are left with after World-Wide Volkswagen Corp.:
1. Does state long-arm statute authorize personal jurisdiction over this non-resident
a. If yes, then minimum contacts
2. Is the defendant’s conduct and connection with the forum State such that he should
reasonably anticipate being haled into court there?
a. Affiliating circumstances
a/k/a Purposeful availment
b. If yes, then “reasonableness”
c. Tests for “fair play and substantial justice”
d. Five factors
7. Brennan
a. Brennan believes this is not a two-step test, this is simply a test of reasonableness
b. The adopted two step test that Brennan believes should just be reasonableness:
Minimum contacts
1. Affiliating circumstances
a. Not all of these are necessary, this is not exhaustive or exclusive
If yes, minimum contacts, then “reasonableness”
1. Tests for fair play and substantial justice”
c. Minimum contacts and reasonableness should be one in the same, minimum contacts
should not be a prerequisite for reasonableness
8. Clues defendant might reasonably believe they could be sued in a forum state
a. Intentional absence
I will sell in every state except X state
b. Insurance to protect in a particular state
c. Raise prices in a certain jurisdiction to balance costs of litigation
9. Keeton
a. This is an intentional tort case, so it is different
b. In this case, the lack of assessing the plaintiff’s minimum contacts in forum state is
c. This is a defamation case that rewarded the plaintiff’s ingenuity of finding a state with a
long-arm statute where she was able to sue
California note, California has strong consumer protection laws, this is why you
will see so many suits being brought in California
d. If it was not an intentional tort, it would have been analyzed different
10. Burger King
a. Broad personal jurisdiction
b. Reaching out to forum state = purposeful availment
c. Substantial and continuing obligation between themselves and the forum
d. There was fair warning of being sued in the forum state
11. Asahi Metal Industries Co.
a. The court is divided on minimum contacts
b. O’Connor
They needed to do something more than simply putting their good out in the
stream of commerce
1. For example, marketing, advertising, etc
2. This became the stream of commerce plus test
3. Something that said you targeted the forum state
4. It is not enough to say that it can just end up there you have to do
something to put it there
c. Brennan
Simply placing something into the stream of commerce is enough
Foreseeability or awareness is enough
‘Regular and anticipated flow of products’
1. Seeing that your things could end up in a state without trying to put it
d. No real standard is set, all agreed it would be unreasonable/unfair to object the defendant
to personal jurisdiction regardless of whether minimum contacts were satisfied
e. O’Connor approach is the narrowest, if you satisfy O’Connor you satisfy Brennan
12. The constitutional test for specific in personam jurisdiction has two parts, both of which must be
satisfied. First, the court must determine that the defendant’s contacts with the forum state satisfy the
minimum contacts test. Then, the court must analyze the fairness of exercising jurisdiction over the
defendant by weighing the factors set forth in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102
13. J. McIntyre Machinery Ltd.
a. Narrow holding is there is no personal jurisdiction
b. For a defendant to be subject to a state’s personal jurisdiction, it must purposefully avail
itself of the privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws
Personal jurisdiction requires the defendant to avail itself
c. Two factors that Kennedy outlines on jurisdiction:
Forum by forum sovereign by sovereign analysis
Because the United States is a distinct sovereign, a defendant may in principle be
subject to the jurisdiction of the courts of the United States but not of any
particular state
1. In this case, the defendant targeted the US, but did not specifically target
New Jersey
d. Kennedy’s Idea: Submission
Exercise of judicial power is not available unless they submit to the authority of
the forum state
Important role of the defendant submitting to the forum state
Emphasized submission/sovereignty/purposeful availment
e. Invokes Hanson
Exercise unless it purposefully avails itself
f. Ginsburg Dissent
In her view “McIntyre UK ‘purposefully availed itself’ of the US market
nationwide, not a market in a single state or a discrete collection of states.
McIntyre UK thereby availed itself of the market of all States in which its
products were sold by its exclusive distributor”
She says McIntyre availed to all states, therefore each and every individual state
Ginsburg points out that New Jersey is the fourth largest scrap metal shearing
business in the US
Availed to ALL states, anywhere a McIntyre machine could be found that is
where jurisdiction applied
g. It is the defendant’s actions, not expectations, that allow a State’s courts to exercise
jurisdiction over the defendant
In some instances a defendant may be subject to the federal courts due to a
relationship with the federal government but not to a court of any particular state
Here, J. McIntyre did not engage in any conduct purposefully directed at New
Consequently, it cannot be subjected to the jurisdiction of a New Jersey court
Where they cause harm, they can be sued
h. In this case, we see on display the epic fight of state sovereignty and fairness
i. On an exam using J. McIntyre
The Supreme Court has not resolved this issue
Breyer was the most narrow holding
1. Breyer said I’m not picking and neither should you have to
Where Brennan and O’Connor stand on the issue
1. Pick Brennan or O’Connor’s view
2. Can also state Kennedy rejects Brenna
Give the same answer (diverging) court could select either
1. I would pick Brennan
2. Picking O’Connor would satisfy Brennan
3. Explain O’Connor is a more demanding stream of commerce plus
14. Specific v. General
a. Specific ‘arise out of or relate to’
b. Minimum contacts first, then arise out of or relate to
**Stream of commerce, the court still hasn’t decided, but here is where we sit**
15. Florida Farmer Scenario
a. Justice Breyer and Kennedy worry about the Florida Farmer and minimum contacts
b. Small town guy, sells to a national distributor and may need to fly to Florida to litigate in
a forum state
c. Minimum contacts tying the farmer to the forum state
d. However, justices worried about the Florida farmer are not factoring the reasonableness
16. Bristol-Myers Squibb Co.
Not a stream of commerce case, an “arise out of or relate to”
a. 8-1 vote, this is a holding for future courts for arising out of or relating to defendant’s
b. This case is sliding scale, arising out of or relating to
c. The court held
If you do not live in the forum state
Did not obtain the offending product in or from the forum State,
Did not suffer harm, and
Did not use in the forum state, they will not find connections
d. The plaintiffs brought suit in California, but do not live or have connections to California
There are strong consumer protection laws in California
e. The question in this case was whether the plaintiffs here could take advantage of Bristol
Myer’s Squibbs contacts in California
f. The plaintiff’s claim does not “arise from” the defendant’s contacts with the forum
State, and so there is no specific personal jurisdiction here
For a state court to assert specific jurisdiction, there must be an affiliation between the
forum state and the specific claim at issue
There is no affiliation between California and the nonresident plaintiffs’ claims.
Accordingly, California courts do not have specific jurisdiction over the
nonresidents’ claims.
h. For arise out of or relate to, we look to the plaintiff’s claims
Establishes a strict relationship
17. Ford Motor Company
a. Claim did not rise out of, but did relate to and that was enough to satisfy
Ford was strategically marketing
b. Specific jurisdiction in this case
Relative among defendant, the forum and the claim is the essential foundation of
specific personal jurisdiction
c. Because Ford was systematic in serving those markets
d. Concluding
Just because the product you bought was
1. designed,
2. manufactured,
3. and first sold in other states
Not deprived a forum of specific personal jurisdiction over a suit involving a
plaintiff residing in the forum state and injured there, where defendant otherwise
plainly “purposefully availed” itself of the forum, including selling the identical
item in state
e. Split “arise out of” or “relate to”
f. Minimum contacts today generally means purposeful availment
Stream of commerce is one way to demonstrate purposeful availment
1. One way, in part, to show purposeful availment
g. Kagan - plaintiff claim did not arise out of, but did “relate to”
h. Holding:
Connection between plaintiffs’ product liability claims, arising out of car
accidents in each plaintiff’s State, and defendant's activities in the forum States
was close enough to support specific jurisdiction even though the cars were
manufactured and sold outside the forum States and later resold to plaintiffs, as
defendant had advertised, sold, and serviced those car models in both States for
many years
The defendant’s demand for an exclusively causal connection test was
inconsistent with the Court’s precedents, under which specific jurisdiction
attached when a company served a market in the forum State and the product
malfunctioned there
In conducting so much business in the forum States, defendant enjoyed the
benefit and protection of their laws, which created a reciprocal obligation that the
car models it marketed there be safe for their citizens to use
18. Specific Jurisdiction
a. Does state long-arm statute authorize personal jurisdiction over this non-resident
If yes, then minimum contacts
1. Purposeful availment
a. Stream of commerce?
E.g., Asahi, J. McIntyre
b. If yes, does the plaintiff’s claim “arise out of or relate to” the
defendant’s contacts with the forum State?
BMS, Ford
c. If yes, then “reasonableness”
Tests for “fair play and substantial justice”
1. Five factors
a. Five factors weigh into the
reasonableness test (primary concern is
the burden on the defendant)
b. Burdens the defendant to be hailed in
court there (always a primary concern)
c. Forum state’s interest in adjudicating the
d. Plaintiff’s interest in obtaining
convenient and effective relief
e. Interstate judicial system’s interest in
obtaining the most efficient resolution of
f. Shared interest of several States in
furthering fundamental substantive
social policies
Conclusion of Stream of Commerce Cases
19. Shippitsa Ltd. (introduction to internet cases)
a. You have to be overly interactive in order for there to be specific jurisdiction
b. Shippitsa Ltd. illustrates, the commonly used Zippo test distinguishes among Web sites
depending on their level of interactivity
Zippo test application
1. Widely regarded for determining personal jurisdiction on the internet
2. Given by Western District of Pennsylvania, district court in 1997
a. Quite unusual for a district court to give a binding opinion
c. Three categories for internet
Billboard advertisement = no personal jurisdiction
Contractual relationship + repeated commission of files = always personal
The website falls somewhere in between one and two - sliding scale based on
interactivity and commercial nature
1. How interactive it is
2. And are you selling them a product
3. Assess on sliding scale based on level of interactivity and commercial
d. The Zippo test is looking to set limits of jurisdiction, not to expand jurisdiction
Intended to be like minimum contacts
Intended to predict where you can be hailed into court/have some control over
where you can be hailed into court
e. Examples where there isn’t jurisdiction via the internet
When it exists and someone comes unilaterally to you (passive)
f. Active pages
Amazon, an interactive site
g. Alternative test is the Calder Test (liable and effects of liable)
Such as in Keeton, personal jurisdiction just works differently with intentional
torts (liable)
Alternative to Zippo Test
Does not apply well to non-tort cases
h. Zippo holding:
Maintaining a website that automatically redirects users to an alternate is not
enough to confer personal jurisdiction over a nonresident.
Websites that only passively advertise never confer personal jurisdiction
On the other hand, websites that facilitate contracting, with knowing, repeated
transmission of files over the internet, always confer jurisdiction
For websites somewhere in between, courts examine the level of interactivity and
the commercial nature of information exchanged on the website
That test reflects traditional personal-jurisdiction principles:
1. Whether a nonresident purposefully took advantage of the benefits and
protections of the forum’s laws such that the nonresident should
reasonably anticipate being sued there
i. The more interactive the Web site, the more likely that it confers jurisdiction; purely
passive Websites do not confer jurisdiction
End of Specific Personal Jurisdiction and the final Specific Jurisdiction Test:
1. Does state long-arm statute authorize personal jurisdiction over this non-resident defendant?
a. If yes, then minimum contacts
Purposeful availment?
1. Stream of commerce?
a. E.g., Asahi, J. McIntyre
2. Internet contacts?
a. E.g., Zippo, Calder “effects” test
If yes, does the plaintiff’s claim “arise out of or relate to” the defendant’s
contacts with the forum State?
a. BMS, Ford
If yes, then “reasonableness”
1. Tests for “fair play and substantial justice”
2. Five factors
Start of General Personal Jurisdiction
20. General Personal Jurisdiction
a. Do not talk about stream of commerce in general jurisdiction
b. General jurisdiction is appropriate only where defendant is essentially at home
c. Moderately straight forward
21. General Jurisdiction Background
a. Three factors for personal jurisdiction:
1. Citizens of a state are always subject to jurisdiction in the courts of the state
2. A defendant can consent to jurisdiction
3. A defendant can have such significant contacts with forum state that the plaintiff
could sue the defendant for a claim unrelated to the defendant’s contact
4. Shoe showed us “continuous activity of some sorts within a state is not
enough” for “suits unrelated to that activity” but corporation’s “continuous
operations within a state” can be “so substantial and of such nature as to
justify suit against it” on claims “entirely distinct from those activities”
22. Origins of general jurisdiction
a. Shoe
Continuous activity of some sorts within a state is not enough for suits
unrelated to that activity, but corporation’s continuous operations within a
state can be so substantial and of such a nature as to justify suit against it on
claims entirely distinct from those activities
23. Goodyear
a. Introduced that the defendant is “essentially at home” in forum state
b. Elaborate on in Daimler case
24. Daimler
a. Daimler narrows it:
Place of incorporation
Principal place of business
Hypothetical state where defendant is “essentially at home”
1. This case/facts isn’t it
*brings US in like with the rest of the world*
a. Holding:
A court can assert general jurisdiction over a corporation if the corporation’s
affiliations with the forum state are so continuous and systematic as to render the
corporation at home in the state
b. Daimler’s affiliations with California are not so substantial that they justify this suit being
heard there
c. Daimler and MBUSA are incorporated and have their principal places of business outside
of California
d. Although MBUSA distributes cars to and maintains offices in California, MBUSA
distributes cars to every state
If the Court were to grant the district court general jurisdiction based on that affiliation,
this suit could also theoretically be heard in every state
25. Other bases for personal jurisdiction
a. Property
b. Presence
c. Consent
26. Shaffer (property)
a. The property seized was statutorily located in Delaware, but it did not have any relation
to the subject matter of the litigation
b. The defendants had nothing to do with the state of Delaware; their only connection to it
was that they had accepted directorial positions in a company incorporated in Delaware,
but accepting these positions does not mean they can be taken to a Delaware court
c. Accordingly, Delaware’s assertion of jurisdiction over the defendants was inappropriate
and the judgment below is reversed
d. Quasi in rem jurisdiction may only be asserted when the interests of the persons in
the property seized have sufficient contacts, ties, or relations to the state
e. A state lacks jurisdiction over an individual unless the lawsuit arises out of his activities
in the state, because the non-resident litigant in that case was an absent one
f. In all rem claims go through minimum contacts and reasonableness, there are three types
of in rem claims
g. Do they have to pass through Shoe or do they stand on their own after being mentioned in
h. In personam
i. In rem
Pure in rem, there is personal jurisdiction
1. Pure in rem example is a quiet title claim
j. Quasi in rem
Quasi in rem would be about the property, but not the property itself
Related (mortgage foreclosure) - usually, yes
1. Related should be your clue, they are related to
Unrelated - unlikely
1. Does not arise out of or relate to
All assertions of state court jurisdiction must go pass through the Shoe basis for jurisdiction
27. Burnham (presence)
a. Where we see “tag jurisdiction”
“Tag” jurisdiction is a way for a court in one state to constitutionally assert
personal jurisdiction over an out-of-state defendant who visits the state
where the court presides
The court will have personal jurisdiction if the defendant is properly served
while in the state
b. A non-resident party may be properly served with process while temporarily visiting a
state without violating due process
c. It is well established that states have jurisdiction over non-residents who are physically
present in the state, no matter how long that individual plans to stay in the state
d. This rule has a long and continuing tradition of being enforced by the courts, across
e. Burnham argues that he lacks the minimum contacts necessary for the court to properly
apply personal jurisdiction, but that is a perversion of the standard; indeed, the minimum
contacts standard was created for use in the absence of a party’s physical presence in the
state, which is not necessary in this case, as Dennis was physically present in California
when he was served
f. Because Dennis was physically present in California when he was served with process,
the state properly asserted personal jurisdiction over him
g. Transient presence in forum state is enough to satisfy personal jurisdiction if served while
in state
h. Does not apply to corporations/officers of corporations
If you want to serve an officer and not the entire corporation you can use tag
i. Force/fraud for presence in state
j. Special appearance
k. If defendant is in forum state for unrelated court appearance it does not apply
l. **tag jurisdiction is the rule for natural persons, corporation has no physical body so
there is nothing to tag**
28. Consent
a. Voluntarily appear in court (not a special appearance)
b. Consent by contract (forum-selection clause)
c. Implied consent (Hess)
“You imply consent to be sued when you drive on our roads” Hess vs.
29. Carnival Cruise Lines
a. Prima facie forum selection clauses are valid, but heavily scrutinized
b. Balancing Test (factors to consider):
Special interest in limiting fora
Limiting forum reduces confusion/cost for plaintiff
Passengers benefit from defendant lower litigation costs through lower cost fares
*contract of adhesion*
c. Plaintiff failing to meet heaving burden of proof that would be too much $/income forum inconvenience
d. Subject to fairness scrutiny
The passengers had a warning, and,
Florida was not picked to make litigation difficult
e. Forum selection clauses are not always enforceable
30. Bremen
a. No option to negotiate
b. It was not fair
The chosen forum does not have to be more convenient than anywhere else, but rather
must only be a reasonable and just forum for resolution of the dispute.
31. Alternative Bases for Personal Jurisdiction
a. General jurisdiction
Where defendant is “essentially at home”
1. Natural persons: domicile
2. Corporations: state of incorporation, principal place of business
b. Property
In rem suits - personal jurisdiction is OK
Related quasi in rem suits - personal jurisdiction is OK
Unrelated quasi in rem suits - not OK
c. Presence
Basically always OK
d. Consent and waiver
Don’t waive a personal jurisdiction defense by mistake
Forum selection clauses are mostly OK for conferring personal jurisdiction
32. Tradition
a. Consent
Forum selection cause
Show up for court
Special appearance does not count as consent
1. Show up to argue
By driving on the roads in a different state you are subject to be brought back to
that state for litigation, implied consent seen in Hess
1. “You imply consent to be sued when you drive on our roads” Hess vs.
Idea of implied consent
1. Driving on roads the act of driving on roads implies consent to laws of
b. Domicile
Territorial boundary (announced by Pennoyer)
33. Notice
a. The notice “must be reasonably calculated, under all the circumstances, to apprise
interested parties”
Must give notice
And opportunity to be heard
b. Email
Federal rules do not allow the first to be sent via email
You can consent to receiving the rest of the information via mail
34. Rule 4(K) Personal Jurisdiction in Federal Court
a. 4(k)(1) In general, service or waiver establishes personal jurisdiction over defendant if
b. (A): Federal court jurisdiction overlap
Any state where defendant has personal jurisdiction the federal court does as well
State jurisdiction would always result in federal
c. 4(k)(1)(B): 100-mile bulge rule
*only applies when there is a rule 14 or 19 party added*
Parties joined to an action (supplemental jurisdiction) already in action as long as
they are served with process within 100 miles of the courthouse
d. 4(k)(1)(C): Statutory authorization
If a statute provides jurisdiction - rare
e. 4(k)(2): Nationwide federal claim jurisdiction
Last resort, where they can’t find a state where there is jurisdiction, this applies
national jurisdiction
**Title 7 does not provide authorization for jurisdiction under 4(K)(1)(c)**
Even kennedy approach - kennedy says drop brennan
1. A Tennessee plaintiff and a Kentucky defendant get into an accident in Kentucky. Is there personal
jurisdiction over the defendant in Tennessee state court?
No, there would only be jurisdiction only in Kentucky
1. Defendant is not domiciled in Tennessee
2. If he was going through there could be tag-jurisdiction
3. For specific there would need to be minimum contacts - it would need to arise out of or relate to
(hence why Kentucky)
2. Is there personal jurisdiction over the defendant in Tennessee federal court?
No, the state court cannot, so therefore the federal court cannot
3. A Tennessee resident employed by a Kentucky employer in Kentucky sues the employer under Title VII,
the federal statute that bans discrimination in employment. Can he bring the suit in Tennessee federal
No, there is no minimum contact - it would arise out of or relate to actions in Kentucky
Under 4(K)(1)(a)
4. A Maryland customer is injured in a Wal-Mart parking lot in Anne Arundel county and sues Wal-Mart in
Maryland federal court on theory of premises liability. Can Wal-Mart implead or join its snow removal
contractor, which is based in Fairfax County, VA?
Yes, it is within 100 miles of where the crow flies
Under 4(K)(1)(b)
II. Venue
Venue does not have a constitutional foundation
It is a prudential doctrine
A prudential system of deciding how to allocate litigation
Because venue is prudential
a. Failure of appropriate venue can never deprive a court of jurisdiction in the way failure of
subject matter jurisdiction will always deprive a court of jurisdiction
5. Venue Statutes
a. 28 USC 1391
b. Primary concern of venue is convenience
c. Focus on residency (not citizenship)
a. Natural person
Domicile (all the same for natural persons)
b. Corporation or business entities
Overlapping business does not hold true
Citizen is limited
Venue is district by district for corporations, whereas jurisdiction is state
by state
Corporations and other business entities not only where they are in
subject matter jurisdiction, but also in any state they are subject to
personal jurisdiction
Subject for general personal jurisdiction anywhere incorporated
28 USC 1391 (c)
1. A corporation may be sued in any judicial district in which it is
incorporated or licensed to do business or is doing business, and
such judicial district shall be regarded as the residence of such
corporation for venue purposes
28 USC 1391 (d)
1. For purposes of venue under this chapter, in a State which has
more than one judicial district and in which a defendant that is a
corporation is subject to personal jurisdiction at the time an
action is commenced, such corporation shall be deemed to reside
in any district in that State within which its contacts would be
sufficient to subject it to personal jurisdiction if that district were
a separate State, and, if there is no such district, the corporation
shall be deemed to reside in the district within which it has the
most significant contacts.
Defendant - anywhere with personal jurisdiction
Plaintiff - only where principal place of business (headquarters)
6. Statute
a. 28 USC 1391 (b):
Venue in General.—A civil action may be brought in—
1. A judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located;
2. A judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is
the subject of the action is situated; or
3. If there is no district in which an action may otherwise be brought as
provided in this section, any judicial district in which any defendant is
subject to the court’s personal jurisdiction with respect to such action
**Removal makes its own venue**
1. Section 1391 does not apply
FRCP 12(b)(3): Every defense to a claim for relief in any pleading must be asserted in the responsive
pleading if one is required, but a party may assert the following defense by motion: (3) improper venue
How do you decide where to bring a suit?
1. You will have to bring suit where the court has subject matter jurisdiction
2. In a place where there is personal jurisdiction over each and every party
3. A place where venue is proper
**There may be many places where these are all applicable**
Venue Hypotheticals
A civil action may be brought in—
a. A judicial district in which any defendant resides, if all defendants are residents of the State in
which the district is located;
b. A judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated; or
c. If there is no district in which an action may otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to the court’s personal jurisdiction with respect
to such action
A resident of Nashville, Tennessee and a resident of Durham, North Carolina have a car accident in South
Bend, Indiana. Nashville is located in the Middle District of Tennessee, Durham in the Middle District of
North Carolina, and South Bend in the Northern District of Indiana. The Tennessean files suit in federal
court in the Middle District of Tennessee, alleging state-law tort claims and asking for $100,000 in
damages. While the North Carolina defendant is traveling on unrelated business in Tennessee, the
Tennessee plaintiff has him personally served with process.
a.Does the Tennessee federal court have subject-matter jurisdiction?
Yes, these are diverse parties with the amount in question over $75,000
b.Does the Tennessee federal court have personal jurisdiction over the North Carolina defendant?
Yes, tag jurisdiction
If you are in the state and tagged there you are subject to general jurisdiction
c.Is venue properly laid in the Tennessee federal court?
No, the defendant does not reside there
Imagine the same accident, but this time three cars are involved. The third driver is from South Bend,
Indiana, and he wishes to sue both the Tennessean and the North Carolinian in one action. Neither
defendant has left his or her home state since the accident
Considering both personal jurisdiction and venue, and assuming that an applicable state long-arm statute exists, in
what federal court(s) may the suit be brought?
The suit can be brought in Indiana
Assuming it is for more than $75,000 it can be brought in federal court
1391 (b)(2) - indiana is where it took place, so venue will be proper there
Personal jurisdiction in Indiana - driving on roads in a state - Hess you consent to the personal jurisdiction of the
New Hypothetical
3. BizCo, a corporation with its principal place of business in Pennsylvania (and incorporated in Delaware),
employed Jones as a traveling salesman for its business in Maryland, where he is one of eight employees
operating in the state.
After BizCo terminates Jones, Jones sues BizCo for violating Title VII in the district court for the District of
Is the venue properly laid in D. Md.? On what basis (under which provision of Section 1391)?
Does not overlap:
BizCo for diversity jurisdiction is a citizen in Pennsylvania and Delaware
Subject to general personal jurisdiction in Pennsylvania and Delaware
BUT distinct from these statutes for venue it resides in any state where there is specific or general jurisdiction, not
subject to general personal jurisdiction SO ask yourself
***Venue differs for corporation***
1. Change of Venue (transfer)
a. Distinctive from personal jurisdiction
b. Assess in deciding is this the right court
Personal Jurisdiction is one constitutionally grounded limitation on choice of
forum, venue can be another
c. Transfer of venue
Allocating cases within a single court system
d. Governed by two basic provisions
28 U.S.C. § 1404(a):
1. For the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or
division where it might have been brought or to any district or division
to which all parties have consented
a. Van Dusen case rule:
Receiving case must apply the law that would have
applied had there been no transfer
Apply the law of the sending court
Plaintiff picks permissible venue, defendant might want
to try to forum shop to other venues to get more
favorable law
Controlling for perverse incentives
2. No rigid formula for balancing the nine factors
a. None of these factors is either necessary nor independently (on
its own) sufficient to control the analysis to compel transfer
b. We do not assess these factors, every court using the nine factors
c. Different courts have different formulated tests
d. Burden on party seeking to transfer (usually defendant)
3. “Interest of justice nine factors”:
a. (1) the convenience of witnesses;
b. (2) the location of relevant documents and the relative ease of
access to sources of proof;
c. (3) the convenience of the parties;
d. (4) the locus of the operative facts;
e. (5) the availability of process to compel attendance of unwilling
f. (6) the relative means of the parties;
g. (7) a forum’s familiarity with the governing law;
h. (8) the weight accorded a plaintiff’s choice of forum; and
i. (9) trial efficiency and the interests of justice, based on the
totality of the circumstances
4. Burden of proof: clear and convincing evidence
28 U.S.C. § 1406(a):
1. The district court of a district in which is filed a case laying venue in
the wrong division or district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in which it could
have been brought
a. Governs transfer of venue when filed in the wrong court
b. Can dismiss or transfer to proper venue
c. Van Dusen does not apply
Do not want to incentivize plaintiff to file in the
incorrect court
e. In the Shute case, forum selection clause are generally enforceable
What is the appropriate tool to use if you are the defendant seeking to move from
one court to another court listed in the forum selection clause?
1. 1404(a)
2. Not the case the plaintiff’s selected venue is wrong, it may be a
permissible venue
3. Under 1404(a) generally speaking, Van Dusen applies the law of transfer
court not its own law
a. Should Van Dusen apply to transfers under 1404(a) that are
enforcing a forum selection clause?
No, the Shute case
Forum selection clause told them where to sue,
defendant filed a motion to transfer
Everyone agrees they should have filed in Florida
Avoiding perverse incentives, you want to disincentive
the plaintiff from filing in any other court
Flips when we have forum selection clause
1. Usually concerned with rewarding strategic
behavior of defendant (bad behavior)
Prevents the bad behavior toggling on and off
4. Designed to respond to and head off perverse incentives or strategic
behavior the court wants to disincentivize
If a transfer is between sovereigns it is a dismissal for forum non-conveniens
1. One to another and then back is the exception
a. We call this removal jurisdiction
From state to federal
Makes its own venue - 1391 does not apply
We do not call that transfer or forum non-conveniens
b. Example:
If you file in Maryland state court and Maryland state court says that the case
should actually be brought to Virginia, they cannot transfer to Virginia, they then
can dismiss the case for forum non-conveniens
1. Virginia is as foreign as another country
1. Transfer
a. Governs movement within a court system
2. Forum non-conveniens
a. Governs movement between court systems
3. Piper Aircraft
a. Foreign citizens killed on an aircraft due to pilot error or a mechanical error, the facts are
in dispute
b. Passengers bring a wrongful death action against Piper of negligence and strict liability
All of whom are Scottish
c. They file in California State Court
Law is more favorable in California
AND in the United States
1. Strict liability
Piper removes to district court
1. Then they transfer to PA where Piper is located
2. Then dismissal on forum non-conveniens
a. There is a better forum to hear this case (Scotland)
b. U.S. has to dismiss, they do not have the power to transfer to
Supreme Court:
1. The law being more favorable is not entitled to conclusive or substantial
2. Foreign non-conveniens analysis
a. Look at the private and public interest factors
b. Similar to 1404 factors - from one appropriate to another, but
they are distinct
Ease of access to proof
Availability of compulsory process for attendance of
Cost of obtaining attendance of witnesses
Possibility of view of premises
“All other practical problems” that make trial easy,
expeditious, and inexpensive
Administrative difficulties from court congestion
Local interest in having localized controversies decided
at home
Interest in diversity case heard in place “at home with
the law”
Plaintiff’s choice of forum
e. If U.S. tried the case in Pennsylvania law to Piper but we would
have to apply Scottish law
Scottish court would not be required to apply U.S.
liability law
However, this is not a factor that carries weight
f. Scotland has a very strong interest in this case
“Forum shopping”
Plaintiff’s choice of forum was the only factor that
favored it being tried in U.S. courts
3. All the reasons plaintiff’s want to sue when they are injured
a. Those same kind of factors used in personal jurisdiction are seen
here under forum non-conveniens
b. Forum non-conveniens because it is a discretionary nonconstitutional doctrine, those can weigh very heavily
They cannot make up for lack of personal jurisdiction
1. Because one is constitutionally based and the
other is not
a. One is just about convenience
c. The kinds of factors about litigating at home weigh very heavily
in forum non-conveniens
4. Consequence of this case:
a. Piper Aircraft is going to be sued about potential design defect in
its airplane in Scotland
b. The plaintiff’s tried to sue them initially in California
That was never going to work
c. But at the time this case comes between the Supreme Court the
alternative forums are Scotland and the middle district of
Middle district of Pennsylvania makes more sense
1. Principal place of business for Piper
a. Subject to specific and general
b. Corporate entity is subject to general
Where it is essentially “at
Incorporated, and where it has
Principal place of business
Any claim, even claims
unrelated to the contact with the
forum state
As matter of personal
jurisdiction there is not issue
d. “Sometimes you cannot sue defendant even in their home state”
e. This case is how to veto the plaintiff’s choice of forum
**End of personal jurisdiction and related doctrines**
The plaintiff’s opening move, the plaintiff has to file a document, a pleading, to start the case
1. Drafting a complaint
a. Have a conversation with your client
b. Plaintiff comes to you and tells you a story
X happened to me, I want to sue X
c. Learn of client’s “problems”
This is the thing that happened to me
Factual things
d. Identify potential causes of action
e. Research causes of action
f. Draft complaint
Follow the rules that apply to the complaint
Provide sufficient showings to satisfy Rule 8
1. Jurisdiction
2. Short plain statement showing entitlement for relief
3. Demand for relief
Always anticipate attacks
Pleading is the plaintiff’s chance to tell a story and make the defendant’s first impression for them
a. Plaintiff’s document telling the court what happened
b. Every factual assertion is not guaranteed to be true
c. Plaintiff’s recounting of what happened according to the plaintiff
d. Only one side of the story
Rules of Civil Procedure
1. Unify law and equity
2. Reject code pleading
a. And adopted notice pleading instead
b. Made it easier to get into court when it comes to pleading
c. Fewer traps for the unwary
FRCP Rule 8
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court
already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief;
(3) a demand for the relief sought, which may include relief in the alternative or different
types of relief
We need to see in Rule 8 (A)(2) that there are facts that if true satisfy the substantive law
Not the court’s job to check that the claim states a relief
**The defendant will always check the complaint to make sure it states a claim for relief**
a. File a motion to dismiss if it does not
b. Rule 12(b)(6) motion
The defendant calling out the failure to state a claim for relief by the plaintiff’s claim
FRCP Rule 12 (b)(6)
(b) How to Present Defenses. … [A] party may assert the following defenses by motion: …
(6) failure to state a claim upon which relief can be granted…
1. A court will not do this for the defendant
2. The defendant should move to get it dismissed as early as possible
How do you know when the plaintiff has said enough?
a. How courts have interpreted this
b. Conley Standard
c. Twombly Iqbal Standard
1. Conley
a. No set of facts standard
b. Defendants argued there were not enough facts alleged
c. First time the issue of facts bubbled up to the Supreme Court
d. The “no set of facts” standards
e. You cannot dismiss a case unless:
“Unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of its claim which would entitle him to relief”
This is not a high bar to clear
f. This standard will weed out some categories of cases
Need a set of facts the law cares about
Employment law case example
1. Standard is going to weed out a this case where factually there are not
enough employees
g. Sorting strong from weak cases comes from summary judgement at the end of discovery
Discovery encompasses a range of tools to get access to data
1. Through tools of discover
h. Under Conley, very few cases will be dismissed at motion to dismiss stage
More cases would be resolved at summary judgment after discovery
Conley made a determination that the function of sorting strong from weak cases
should happen in discovery not at the motion to dismiss case
1. History of pleading has gone back and forth
2. Benefits to both
a. Waiting until after to do so
You potentially raise the costs of litigation, potentially
for defendants who will often prevail
You let a lost of losing cases get to discovery, which is
Avoiding discovery is no small thing
1. A majority of costs come from discovery
b. Higher bars at pleading stage
Cut of meritorious plaintiffs before they get their chance
in court
c. Efficiency vs. case based fairness
2. This brings us to Twombly
3. Twombly (12 (b)(6))
a. Antitrust lawsuit
b. Federal Sherman Antitrust Act
c. Factual allegations were enough to satisfy the Conley test
d. Supreme Court says the agreement was not enough to satisfy
It was conclusory
They were stating the elements of an anti-trust act and alleging them as facts
Legal element dressed up as a factual allegation
1. Like a legal conclusion
a. Not entitled to be assumed true
2. When a court receives a complaint they have to assume all factual
allegations are true and then assess if they would entitle for relief
How a motion to dismiss works
b. Assumes to be true:
“If every fact plaintiff alleges is in fact born our, would
the plaintiff even then be entitled to the relief they seek”
c. Legal conclusions do not get that assumption of truth
e. Tombly tells us conclusory factual allegations are like a legal conclusion
f. Does not reject Conley itself
It says the no set of facts has earned its retirement and kills that standard
g. Discovery would be extraordinarily expensive in this type of antitrust lawsuit
h. Risk jury would make a mistake
4. Iqbal
a. New standard:
Identify Legal Elements of the Claim
Two-Part Analysis
1. Identify “legal conclusions” (and don’t assume they’re true)
a. “bare assertions”/“formulaic recitation” of elements of claim
b. E.g., conspiracy (Twombly), knowledge/purpose (Iqbal)
2. “Weigh” factual allegations for “plausibility”
a. Possible < Plausible < Probable
b. Based on judge’s “common sense” and “experience”
c. “Obvious alternate explanation”
d. E.g., parallel conduct (Twombly), disparate impact (Iqbal)
It makes clear that the stricter pleading standard announced in Twombly applies to all
civil actions in federal court, not just to antitrust or other complex cases, as many courts
had held
Makes it considerably more difficult for plaintiffs armed only with vague factual
allegations to launch expensive litigation
The Court, in a decision written by Justice Kennedy, held that whether a complaint is
"plausible," as that term is used by Twombly, turns not on whether the alleged conduct is
unlikely, but on whether the complaint contains sufficient non conclusory factual
allegations to support a reasonable inference that the conduct occurred
Iqbal, elaborating on Twombly, sets out a two-pronged approach for evaluating whether a
complaint satisfies Rule 8's pleading requirement
First, the court must "identify the allegations in the complaint that are not entitled
to the assumption of truth"
1. The court must separate pleadings of fact from pleadings of conclusion
Next, the court must evaluate the factual assertions to determine whether "they
plausibly suggest an entitlement to relief”
1. The Court made clear that the "plausibility" required under Rule 8
demands more than the "mere possibility of misconduct"
2. If the facts in the complaint are "not only compatible with, but indeed …
more likely explained by lawful … behavior," the pleading will be
3. The Court found that to allege a cause of action, a plaintiff must plead
facts that "plausibly suggest an entitlement to relief"
Applying Iqbal to Twombly
Identify Legal Elements of the Claim
Two-Part Analysis
Identify “legal conclusions” (and don’t assume they’re true)
1. Twombly: conspiracy, “agreement”
“Weigh” factual allegations for plausibility
1. “Obvious alternate explanation”
2. Twombly: conspiracy/parallel conduct
Rule 12(b)
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a responsive pleading is
allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing
party may assert at trial any defense to that claim. No defense or objection is waived by joining it with
one or more other defenses or objections in a responsive pleading or in a motion.
In response to the complaint the defendant has options, they can:
Defendant can do nothing
File a Rule 12 motion
File an answer
a. Answer can include admission
Plaintiff says I am citizen of Maryland, that is true, I am a citizen of Maryland
Answer should be something they know to be true
b. Denial
Plaintiff asserts I went through the intersection when it was red, I deny
Should be something they lack knowledge of
OR know to be false
c. Defense
On facts
Affirmative defense
d. Counterclaim
You are suing me for negligence, I am suing you for negligence
Answer to the counterclaim
1. FRCP 12 - time to serve a responsive pleading
(a) Time to Serve a Responsive Pleading.
(1) In General. Unless another time is specified by this rule or a federal statute,
the time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and
complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60
days after the request for a waiver was sent, or within 90 days
after it was sent to the defendant outside any judicial district of
the United States.
(B) A party must serve an answer to a counterclaim or crossclaim within
21 days after being served with the pleading that states the counterclaim
or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being
served with an order to reply, unless the order specifies a different time.
Rule 12 hypotheticals:
Arnold files a complaint for assault against Palmer. Palmer files a timely motion to dismiss for insufficient service
of process. Several months later, the judge denies the motion to dismiss and so notifies the parties. May Palmer,
after being notified of the denial of his motion:
1.Move to dismiss for lack of personal jurisdiction?
No, 12 (g)(2), (h)(1)
2.Answer, including the defense of lack of personal jurisdiction in the answer?
No (h)(1)
3.Move to dismiss for failure to state a claim upon which relief can be granted?
No (g)(2)
4.Answer, including the defense that the complaint fails to state a claim upon which relief can be granted?
Yes (h)(2)
5.Move for a more definite statement under Rule 12(e)?
No (g)(2)
6.Answer, requesting a more definite statement under Rule 12(e)?
No (e)
7.Move to dismiss for lack of subject matter jurisdiction?
Probably (h)(3)
8.Answer, including a defense that Arnold has given him a signed release from liability on all claims arising out of
the alleged assault?
Yes 8(c)
Rule 12 (g and h) (intersects with Rule 12 b)
You get one and only one pre-answer Rule 12b motion - all of your defenses need to be in there
(g) Joining Motions.
(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.
(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a
motion under this rule must not make another motion under this rule raising a defense or objection that
was available to the party but omitted from its earlier motion
(h) Waiving and Preserving Certain Defenses
(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule
15(a)(1) as a matter of course
(Use it or lose it, these must be used in opening move or you lose it for good)
(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a
person required by Rule 19(b), or to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial
(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action
Defendant does not have to file a 12b motion, but if they do file a 12b motion or answer it has to be in
opening move or they are lost forever
12 (h)(2) is referring to 12(b)(6):
1. 12(b)(6) is most important, Twombly-Iqbal defense, failure to state a claim which relief can be
granted, not waived if you forget to put it in your opening move as a defendant
a. But you should put it in your opening move, but if you forget you can raise it somewhat
late, not waived by being omitted from opening move
b. Can be raised in any pleading
c. Can be raised in answer even if its on the second move in the answer
d. Motion for judgement on the pleading
e. Or it can be raised as late as trial
“Why are we at trial your honor there is nothing here the law cares about?”
f. Cannot be raised for the first time on appeal
g. Use it sometime but not later than trial
FRCP 7(a)
(a) Pleadings. Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
(b) Motions and Other Papers
Rule 8(b): Silence is held against you
a. BUT if you are not required to respond and you do not respond then your silence is not held
against you
b. A court can order a reply
Rule 8(b), is to the defendant as Rule 8(a) is to the plaintiff
Rule 8(b)
Focus is notice to the other side, Twombly and Iqbal tweak what is required to give notice
(b) Defenses; Admissions and Denials.
(1) In General. In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party.
(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the
(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a
pleading—including the jurisdictional grounds—may do so by a general denial. A party that does
not intend to deny all the allegations must either specifically deny designated allegations or
generally deny all except those specifically admitted.
(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an
allegation must admit the part that is true and deny the rest.
(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to
form a belief about the truth of an allegation must so state, and the statement has the effect of a
(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—
is admitted if a responsive pleading is required and the allegation is not denied. If a responsive
pleading is not required, an allegation is considered denied or avoided.
Rule 8(d)
(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.
(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a
claim or defense alternatively or hypothetically, either in a single count or defense or in separate
ones. If a party makes alternative statements, the pleading is sufficient if any one of them is
(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it
has, regardless of consistency.
1. Milton
a. Under Rule 8(b) of the Federal Rules of Civil Procedure, only three types of responses to
a complaint are permitted.
The defendant must either:
1. admit or
2. deny each allegation,
3. or state a lack of knowledge or information sufficient to form a belief
b. Under 8(b)(6) an allegation is admitted if a responsive pleading is required and the
allegation is not denied
c. Under 8(b)(1)(B) however a party is required to respond only to allegations asserted
against it by an opposing party
d. Court is working for both justice and efficiency
a. This case is where we see on display the motion to strike affirmative defenses
b. GEOMC sued and there was a lot of amending for complaint and answers
c. Plaintiff files motion to strike affirmative defenses and counterclaims
Whether the motion to strike is properly granted:
1. Rule 12(f) the court may strike insulting material and insufficient
2. Why can’t they just file a 12(b)(6) motion?
a. 12(b) every defense to a claim for relief, an affirmative defense
is not against a claim for a relief it is just an affirmative defense
d. Twombly Iqbal standard applies when assessing a complaint under a motion to dismiss
e. Three part test for the pleading standard for affirmative defenses used by the district court
pre-Twombly Iqbal
In order to prevail on a motion to strike [an affirmative defense] a plaintiff must
1. There is no question of fact which might allow the defense to succeed
a. Conley Test
2. There is no question of law which might allow the defense to success;
3. The plaintiff would be prejudiced by inclusion of the defense
f. The second circuit revisited this test after Twombly Iqbal
The lower courts are split on the Twombly Iqbal being applied to defenses
1. Timing for defenses, the answer has to be filed 21 days after the motion
has been decided
a. The defendant has way less time, one has years the other has
b. Argument against Twombly Iqbal
2. Argument for Twombly Iqbal
a. Treat like things alike
g. Second circuit more flexible test version of Twombly Iqbal
The question of fact is subject to Twombly Iqbal, with accommodations
The second part is left alone - “there is no question of law which might allow the
defense to succeed”
The third part, if it was filed timely as long as it was valid
1. I’m sorry if my affirmative defense means you lose the case plaintiff, but
that is kind of the point
2. Prejudice only a factor “where defense is presented beyond the normal
time limits of the Rules”
h. The court concludes that the district court did a fine job
Keep in mind this is one court’s decision, this was the first court to make a
decision on this issue
Within court’s discretion to strike the affirmative defenses here
i. Using this in an essay:
Discuss the reasons why you would or wouldn’t want to apply Twombly Iqbal to
an affirmative defense
1. This suit was filed in the southern district of New York and appealed to
the second district
j. Affirmative defense (Rule 8(c))
(1) In General. In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including:
1. Accord and satisfaction;
2. Arbitration and award;
3. Assumption of risk;
4. Contributory negligence;
5. Duress;
6. Estoppel;
7. Failure of consideration;
8. Fraud;
9. Illegality;
10. Injury by fellow servant;
11. Laches;
12. Icense;
13. Payment;
14. Release;
15. Res judicata;
16. Statute of frauds;
17. Statute of limitations; and
18. Waiver.
k. 8(c)(2) Mistaken Designation:
If a party mistakenly designates a defense as a counterclaim, or a counterclaim as
a defense, the court must, if justice requires, treat the pleading as though it were
correctly designated, and may impose terms for doing so
l. Defense on the law, there is a special reason why this plaintiff cannot recover even if the
plaintiff can prove every fact is true in the complaint
1. Example of the statute of limitation
m. The court does not raise an affirmative defense if the defendant fails to, that is the job of
the defendant
n. Must put in the complaint, unless able to amend later
o. Does Twiqbal apply as against defenses?
Apply Twibal, but be more forgiving on plausibility
1. Twombly Iqbal is more generous as to what is conclusory and what is
ii. For purposes on motion to strike, accommodate because of more time to
1. Accommodations are for the legal conclusory factors
iii. Forgiveness for a non-tortious explanation
Rule out the obvious alternative
p. Today,
Somewhere in the middle
ii. Not as forgiving as Conley
iii. Not as demanding as Twombly Iqbal
Defendant bears burden on affirmative defense and counterclaim
3. Defense on the facts
a. Would lead to discovery
4. Defense on the law
a. You might not have to spend all of the time and money on discovery that a defense on the
facts would require
b. A defense on the law would be preferable to defendants
c. However, a 8(b)(1)(a) defense is not always an option
If I someone hit your car you cannot say, even if that is true I am not liable
1. That is plainly against the law and plainly negligent
2. You would have to fight the facts
5. Williams v. Citigroup Inc.
a. The rule that under Federal Rule of Civil Procedure 15(a) courts should freely grant leave
to amend a complaint if justice so requires, even after a judgment is issued
b. FRCP 7
Pleadings: in order for a pleading to count as a pleading it has to be one of the
seven defined
c. “With prejudice on the merits”
You cannot refile those claims even if you fixed the issues, in this case she has
her claims dismissed with prejudice - state and federal claims were dismissed
with prejudice even though Citigroup did not request they be dismissed with
d. Dismissal of state law claims on the merits are unusual
e. Whether any anchor claims are left, the courts can decline to exercise continuing to
f. In this case, the district court abused its discretion by denying Williams’s motion because
it was not filed “in the first instance.” Regardless of what the district court meant by “in
the first instance,” the district court employed an improper standard in denying the
g. Court could have waited
Can have leave to file an amended complaint to do better
h. The court looked at the decision of the court as abusive discretion in the way it erred in
using the wrong legal standard
“The court should freely give leave when justice so requires”
6. FRCP 11: Basic principle is do your homework
a. Do not come to court without having done your research whether that is in WestLaw or
b. Rule 11 defined:
(a) Signature. Every pleading, written motion, and other paper must be signed by
at least one attorney of record in the attorney's name—or by a party personally if
the party is unrepresented. The paper must state the signer's address, e-mail
address, and telephone number. Unless a rule or statute specifically states
otherwise, a pleading need not be verified or accompanied by an affidavit. The
court must strike an unsigned paper unless the omission is promptly corrected
after being called to the attorney's or party's attention
(b) Representations to the Court. By presenting to the court a pleading, written
motion, or other paper—whether by signing, filing, submitting, or later
advocating it—an attorney or unrepresented party certifies that to the best of the
person's knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances:
1. (1) it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
2. (2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law;
3. (3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
4. (4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of
(c) Sanctions
1. (1) In General. If, after notice and a reasonable opportunity to respond,
the court determines that Rule 11(b) has been violated, the court may
impose an appropriate sanction on any attorney, law firm, or party that
violated the rule or is responsible for the violation. Absent exceptional
circumstances, a law firm must be held jointly responsible for a violation
committed by its partner, associate, or employee
2. (2) Motion for Sanctions. A motion for sanctions must be made
separately from any other motion and must describe the specific conduct
that allegedly violates Rule 11(b). The motion must be served under Rule
5, but it must not be filed or be presented to the court if the challenged
paper, claim, defense, contention, or denial is withdrawn or appropriately
corrected within 21 days after service or within another time the court
sets. If warranted, the court may award to the prevailing party the
reasonable expenses, including attorney's fees, incurred for the motion
3. (3) On the Court's Initiative. On its own, the court may order an attorney,
law firm, or party to show cause why conduct specifically described in
the order has not violated Rule 11(b)
4. (4) Nature of a Sanction. A sanction imposed under this rule must be
limited to what suffices to deter repetition of the conduct or comparable
conduct by others similarly situated. The sanction may include non
monetary directives; an order to pay a penalty into court; or, if imposed
on motion and warranted for effective deterrence, an order directing
payment to the movant of part or all of the reasonable attorney's fees and
other expenses directly resulting from the violation
7. Patsy
a. FRCP Rule 11 requires attorneys to ensure that any documents submitted to the court
have evidentiary support.
b. Under Rule 11, an attorney is entitled to rely on his client’s statements only if they are
objectively reasonable
c. Here, it is evident that P&E submitted Brija’s second affidavit in good faith
However, P&E knew that Brija’s first affidavit had been conclusively found to be
false and that I.O.B’s prior counsel had disavowed that affidavit
The record viewed in its entirety shows that there was no reasonable basis for
P&E’s reliance on Brija’s statements
Therefore, P&E is subject to sanctions under Rule 11
d. Rather than impose sanctions solely on the litigating attorneys, however, the sanctions
apply to the entire firm
e. It is likely that litigators in a large firm feel pressure to avoid suggesting a client’s
testimony is false, in order to protect the firm’s relationship with the client
f. It is therefore the firm’s responsibility to assure its partners that they are required to
adhere to the highest ethical standards and that the loss of a client due to adherence to
such standards would not lead to adverse consequences
8. Frantz
a. In order to avoid Rule 11 sanction, a party must perform legal research before filing a
complaint to be sure that the claim is not frivolous, and each claim in the complaint must
be colorable
b. Counsel must be aware of current Supreme Court rulings and new legislation which may
affect the validity of his client’s claim. Failure to do so may result in the filing of a
frivolous claim, which in turn opens counsel up to the threat of Rule 11 sanctions.
9. Foman
a. Under Federal Rule of Civil Procedure 15(a), a court will “freely give” leave to amend a
complaint if justice requires that the plaintiff should have an opportunity to amend
b. In the absence of any apparent or declared reason, such as
Undue delay,
Bad faith or dilatory motive on the part of the movant,
Repeated failure to cure deficiencies by amendments previously allowed,
Undue prejudice to the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.
THEN the leave sought should, as the rules require, be ‘freely given’
“The court should freely give leave when justice so requires”
10. FRCP Rule 15: amending as a matter of course, the timeline for the amendment
a. (a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:
1. (A) 21 days after serving it, or
2. (B) if the pleading is one to which a responsive pleading is required, 21
days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.
(3) Time to Respond. Unless the court orders otherwise, any required response to
an amended pleading must be made within the time remaining to respond to the
original pleading or within 14 days after service of the amended pleading,
whichever is later.
b. (b) Amendments During and After Trial.
(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not
within the issues raised in the pleadings, the court may permit the pleadings to be
amended. The court should freely permit an amendment when doing so will aid
in presenting the merits and the objecting party fails to satisfy the court that the
evidence would prejudice that party's action or defense on the merits. The court
may grant a continuance to enable the objecting party to meet the evidence.
(2) For Issues Tried by Consent. When an issue not raised by the pleadings is
tried by the parties’ express or implied consent, it must be treated in all respects
as if raised in the pleadings. A party may move—at any time, even after
judgment—to amend the pleadings to conform them to the evidence and to raise
an unpleaded issue. But failure to amend does not affect the result of the trial of
that issue.
c. (c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a pleading relates
back to the date of the original pleading when:
1. (A) the law that provides the applicable statute of limitations allows
relation back;
2. (B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—
in the original pleading; or
3. (C) the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within
the period provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
a. (i) received such notice of the action that it will not be prejudiced
in defending on the merits; and
b. (ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party's
(2) Notice to the United States. When the United States or a United States officer
or agency is added as a defendant by amendment, the notice requirements of Rule
15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was
delivered or mailed to the United States attorney or the United States attorney's
designee, to the Attorney General of the United States, or to the officer or
d. (d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just
terms, permit a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be supplemented. The
court may permit supplementation even though the original pleading is defective in
stating a claim or defense. The court may order that the opposing party plead to the
supplemental pleading within a specified time.
11. FRCP 59(a) - post judgment
(a) In General.
(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of
the issues—and to any party—as follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been
granted in an action at law in federal court; or
(B) after a nonjury trial, for any reason for which a rehearing has heretofore been
granted in a suit in equity in federal court.
(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion
for a new trial, open the judgment if one has been entered, take additional testimony,
amend findings of fact and conclusions of law or make new ones, and direct the entry of a
new judgment
Impleador only raises problem when impleador tries to raise claim against party and only if the basis for SMJ
If affirmative defense:
Yes i ran red light but she was honking her horn at me
Now, it is a sanctionable, frivolous, and subject to motion to strike as being legally insufficient
Plead legally insufficient claims and defenses not infrequently
Motion to dismiss and motion for summary judgement is the whole ball of wax
Disagree: Does the law care about X?
Employee example:
Motion to dismiss
We all agree on the facts, but we disagree on the application
DEfendant bears burden on affirmative defense and counterclaim
Not on list in 8 c we know affirmative defense