ATTACK SHEET Filing lawsuit: Need to plead, file a complaint o 8a 1. Grounds for subject matter jurisdiction 2. Short and plain statement of the claim needs to be both Factually sufficient- how much factual detail needs to be included? -enough to make the claim plausible. Enough to be more than legal conclusions because we cannot believe legal conclusions. Enough that eliminates other reasons for why someone acted the way that they did. Can dismiss without prejudice to add these claims o Twiqbal requirements Accept facts as true, ignore legal conclusions Then ask if there is a plausible claim from the facts, more than speculation, not just possible There were no facts to support the reason that they terminated him To determine plausibility, judge uses own experience and common sense- subjective o Facts should create enough information to exclude other potential reasons for the behavior could there be other explanations? Legally sufficient o Each element of the law needs to be claimed and included and alleged, meets the law o If one missing, dismiss without prejudice to fix and add that o If elements simply not supported or not true based on the facts, dismiss with prejudice because does not meet 3. Statement of relief sought Note- 12b all defenses need to be asserted in their response, but can use motions for the following 12b1-7 needs to be done before a pleading You can join motions together When waive by not joining (12(1-5) GET WAIVED) Failure to state claim 12b6 and joining a required party are not waived if you do not join them when you do other 12b motions Need to respond within 21 days (by motion or answer) Unless waived formal service of process under 4d, will then have 60 days to do so Those defenses listed under 12b can be answers or pre trial motions to dismiss Smj Pj Improper venue Improper process- summons and copy of complaint, problem with these Improper service of process Failure to state claim Failure to join necessary party under 19 12b2,3,4,5 have to be put in first response (answer or motion) or else waived 12b6,7 can be raised any time through trial, do not have to be in first one 12b1 is never waived, can be raised any time o Defendant’s potential response to your claim/their attack Plaintiff failed to state a claim Would move for this in a 1. Pre answer motion 12b6 (must be done before pleading their answer) NOTE this is not waived if want to do this before giving their answer and have already brought up another 12b motion o If denied, must file answer in 14 days from denial 2. Could list it as a in their answer as a response and then o Make a motion under 12c anytime during the trial (judgement on pleadings after pleading closed but not late enough to delay trial) Or could bring it up at trial 12h2 Plaintiff needs to make a more definite statement 12e (more definite response to be able to reasonably prepare a respond before filing response, point out the defect, if court agrees, plaintiff needs to obey it in 14 days or the pleading will be struck down) If motions denied, answer needs to be served after 14 days o Or defendant could answer as planned Timing: 21 days after served by Pre-answer motion 12 or o If denied, must file answer in 14 days from denial 8b admission or denial Has to Admit o Either expressly or by failing to deny o These things will be taken as true, no proof finding in trial about those issues Deny or o Admits allegations in this paragraph and denies each and every other allegation in the complaint o Careful, be specific as to not accidentally admit something Don’t plead contrary facts, just respond to substance- 8b2 Don’t say "was in brazil," nor too literal denial o Allegation becomes joined- need evidentiary determination o Say lack of sufficient information for Has effect of denial Good faith under rule 11, cant use if have reasonable access or general knowledge/public access to info Each allegation If does not deny, it is admitted AND Assert all affirmative defenses 8c, or analogous It is an affirmative defense when it injects new matter into dispute Or, can not show up Will go into default and default judgement if plaintiff seeks it Only do this if certain court has no personal nor subject matter jurisdiction Because will have to collaterally attack the default judgement frcp 55 o If you do not go to court and goes into default judgement, can only attack on jurisdictional grounds, cannot attack that judgement any other way o Forfeits right to litigate on merits of claim if loses jurisdictional argument o So, if you know does not have any jurisdiction, then can not go to trial because even if goes on default judgement, you know you can challenge it. If not sure if they have jur, if they do default judgement you will be stuck with it because you cannot challenge it any other way Affirmative defense? Burden for plaintiff or defendant to bring up 1. Look at wording of the statutes, look at 8c and see what is affirmative defense and what is analogous 2. Look at law, if it seems like an exception, it should be something that the defendant brings up, not the plaintiff in their claim o Relates to failure to state claim for plaintiff- if statutes wants you to state it, you should unless want it challenged under legal insufficiency Has to be put into answer Difference between denial and affirmative defense o TEST: Consider if it will raise new matter If other side would know that you will bring it up based on what is mentioned, fine to use denial If will bring up new, unforeseen material, use affirmative defense Amending the claim Depends on timing, typically done before trial o Pre trial amending 15a Plaintiff can amend once as a matter of course o 21 days from the date of the complaint being made 15a2 After these 21 days, can still amend with court order, make a motion Must be given freely when justice requires How figure this out? o Accuracy vs efficiency/fairness o Delay caused? Prejudice? o Using good cause and diligence? o Defendant can amend answer once as a matter of course 21 days from filing their answer, add their affirmative defense o During/after trial 15b variance in evidence at trial between the pleadings/claim evidence being entered is beyond what should be included as part of the claim Amendments for this also given freely when aid in presenting merits Make sure no prejudice based on delay Court can suspend and allow other side to take time on new matter o Relation back 15c 15c used in only one circumstance Only used if amending pleading to add a claim when statute of limitations has run on the claim Example Way a defendant would challenge amending their claim: vetco would argue that leave to amend should be denied because statute of limitations run Respond that I can amend under 15c Test- new claim against existing party after sol, we will relate back/make believe if it arose out of same transaction as the old one If just a new claim, still needs to arise from same transaction Judge has discretion, goal is to allow to be decided on the merits, balance it against prejudice to the other party, was there notice to them on the face of the claim? Transaction definition/test- could be what gave rise to everything? Could be narrow or broad Look at the injury to the plaintiff Conduct by defendant Overlap of damages requested for the claims Overlap of facts used to prove the claims Similar nature of claims and their underlying theories time If amendment is against new party Same transaction Will not be prejudiced in defending on the meritsVerify that they had the informal notice during the statute of limitations to act Court also admitted that they could have known, but needed to meet last requirement, too Knew the identity of the new party but for their mistake about the identity Smith had not known their identity at all and wanted to add them "new" ENFORCEMENT Rule 11- sanctions o Prevent abuse of the rules o Can use rule 11, court’s initiative, or 28 usc 1927 o Procedure of how to move for rule 11 sanction 11c The motion itself has to describe the specific conduct but before filing, first, One side serves to counsel of other side, Safe harbor, don’t file with court until other side has 21 days to fix it or withdraw If not fixed within safe harbor time, file with the court The court itself can show cause and require the party to defend their actions Objective standard o empty head but pure heart no justification, has to stop and think o What triggers rule 11? 11a/b- signing/presenting/advocating to court Certifies did reasonable inquiry under the circumstances? And also assuring that not improper purpose and supported by the facts that will probably be found. Happens when sign or give it to the court 11b Test: best of knowledge, information, belief considers the time and experience of lawyers, if had lots of time and resource and if this is a big deal, had to do lots of research under circumstances if bringing lots of same case they/someone else brought before, that is wasting time, etc Warrants for its proper purpose Not to harass, cause unnecessary delay, increase cost of litigation Either real claims or on frivolous claims to extend or modify existing law 11b Look at precedents, are their claims based on dissents or temporal? Claims that likely have legal support and will have evidence 11b How much time had to gather good info? Was info open or hard to access? If finds violation, court has discretion for sanctioning 11c Limited to what is sufficient to deter Not compensate, not punish Sanction types- discretionary o Non-Monetary o Monetary Fine to court Pay fees to opposing party that accrued because of the violation they created How determine amount? Subjective, not reasonable amount Was it willful or negligent? Is this common for the party? How important was the error? Effect on the litigation? Experience of the attorney? What resources do they have? The more, the more has to pay o Against who? Attorney If so, firm also in trouble unless outstanding instance Party Only not monetary if represented by attorney for 11b2 violations because legal contentions are for attorneys Policy Deter baseless filings- efficiency and fairness Not about punishment/compensation- it is about deterrence First- identify section of rule 11 violate B2- need to be legal contentions B3- legal contentions need to have factual/evidentiary support now, or will likely have it after discovery PERSONAL JURISDICTION Does the state have power over the defendant? Need statute and due process rights to proceed General jurisdiction Entity at home, citizen, incorporated, primary place of business, doesn’t need to be reasonable and contact does not need to give rise to the claim Specific personal jurisdiction Some relationship between contacts and claim, don’t need explicit consent or presence 1st analyze if meet the statutes o Meets state or fed long arm (look at facts) or 4k exceptions that are present and applicable? 2nd analyze if application of the statute meets constitutionality/due process o Does the application of the statute satisfy due process Purposeful availment with minimum contacts Availed by self to reap the benefits to justify being obligated to be adjudicated under? Types of jurisdiction o Quasi in rem- treat it as a contact attach property to get jurisdiction, no relation to claim If value of attached property is only 200, that’s the max in quasi rem jurisdiction over neff, cant have jurisdiction of neff at large and all of his properties Extent of in quasi rem/jurisdiction is only up to the amount of the property, cant get other property But in personam is personal obligation of full amount of judgement o In personam- attaching the person, person is in state, etc o In rem- claim about property where property is the claim 2 purposes basis for claim Basis for personal jurisdiction Ways to consent to jurisdiction Can still have jurisdiction through waiver of right to challenge personal jurisdiction, consent, tag, at home Pers jur over defendant if get consent or waiver Forum selection clause in contract, if sign, have consented to that clause that says any action of contract will be filed here o Only deals with breach of contract instances o Choice of law is compelling and gives notice but is not consent Consent- show up Waiving personal jurisdiction in fed court- fail to file rule 12 defense of no personal jurisdiction when filed another rule 12, court will find that you waived right to say lack of personal jurisdiction defense o In states, it is special appearance Defendant files counterclaim in forum state Tag jurisdiction o If person found within the state at any point in time, time, reason, does not matter, serves you with process Is this always constitutional? Yes Scalia- intl shoe does not govern tag jur, but historically always used this Brennan's argument Any time in state, by definition, getting benefits from state- public service, intl shoe governs 2 prong test for minimum contacts/personal jurisdiction where not at home Meet both, but have to balance Minimum contacts o Purposeful availment- not unilateral (someone just lives there or someone takes it into state themselves) Tests Stream of commerce directs with intent to target state, acts, not expectations/foreseeability puts into stream and aware of sales, sales are substantial contracts- forum selection clause automatically creates jurisdiction/consent, but choice of law clause does not prior negotiations terms future consequences effects for intentional torts Express aiming test o o o Intentional tortious action AND NEEDS Something more, Cant just be the other party's place of residence Expressly aimed at forum state Causes actual harm that defendant knows is likely to be suffered in the forum state Effects test factors Focal point of the story/d's actions Facts in the story Where do the sources for the story come from Focal point of harm P's residence P's work Level of distribution in state Internet- injury, minimum contacts and aiming at state Level of contact-does not matter as much as purposeful availment Once/isolated Continuous and systemic Relationship of contact to claim Gives rise- Burger king- contract was the contact with Florida The contract gave rise to the breach of contract claim Unrelated Bristol- defendant’s actions in forum connected to the claim Ford- in state injury and activities in state must involve the same product- Selling, servicing, advertising cars, does not have to be causal Reasonableness/fair to bring against the claim against the defendant in this state?- if general jurisdiction, don’t need D's burden Hard, now bc of technology P's interest in adjudicating in this forum Are they a resident/citizen? Was this the location of the injury? Was this where the conduct/activity that gives rise to occurred? What law is governing in the forum? Forum's/state’s interest in adjudicating in forum Wants to protect its people Interest of other states/nations/interstate Is there a joinder of multiple plaintiffs or defendants? Location of witnesses, evidence Other states’ interests and arguments for why this forum is better to adjudicate in CHALLENGING PERSONAL JURISDICTION UNDER RULE 12 Answer in 21 days or 60 days if waived service unless challenge personal jurisdiction by o Defendant filing rule 12 pre answer motion or o Placing the defense in answer or o Amending their answer with this defense as matter of course under 15a Can use personal jurisdiction to collaterally attack prior judgements DUE PROCESS RIGHT TO COUNSEL 3 factor test the court evaluates/balances to see if there is a right to counsel o Private interests at stake- the more foundational/significant, the more right Physical liberty or criminal leads to automatic right to counsel Property liberty Familial liberty o Government’s interest Aligned with private interests? Economical or efficient to provide counsel in such a situation? o Risk that private interest will be erroneously deprived if no counsel considering Formality of the proceeding Is it evidence-based Adversial Punitive even if no physical liberty at stake? Nature of the substantive law- difficulty of understanding? Nature of factual issues o Hard to comprehend o Unfair o Technical o Will there be expert testimony? Individual’s own abilities o Educated? o Distressed because of life situation or intimidated? PROCEDURE When Uses o o plaintiff asks for counsel, is denied, and loses the trial as basis for appeal claiming Should have been given counsel and Previous judgement should be void for lack of due process in denying the counsel DUE PROCESS RIGHT TO NOTICE/SERVICE Rule 4 or statute and constitution Can waive service or serve Statute- 4d What has to be sent How can you send it Reasonable time to wait after serving, usually 30 days until Can ask for fees and costs of serving because did not waive right to serve o Effect of waiver Gets 60 days to respond versus 21 days If fails to waive, has to cover costs and fees unless has good cause not to o If serving/defendant does not respond to waiver, must Serve personally an individual 4c, 4e Serve by person who is not a party, 18 years old Where- dwelling Place where there is an indicia of permanence that indicates will be likely to result in actual service, can have more than one- facts for indicia, extended time for likeliness o Leave with person of suitable age/discretion who resides there o State law service provisions where the court is located or where the process is served Constitutional o mullane standard notice has to be reasonably calculated to inform intended parties of action and afford opportunity to present objections applied in cost/benefit test in light of reasonable alternative methods used balance to see which is the most proper method to use interests of the defendant type of proceeding- losing house or worse, open to errors? Need to prep reliability of method and reliability and expense of other usual methods o Defenses Even if met statute, application of the statute to me is unconstitutional, violates due process Collateral attack- void because did not give notice for first case o Challenges: Could challenge constitutionality of service even if noticed? No because the deal is about being notified Opposite with challenging under rule 4 If didn’t do correctly, does not matter if received, it is grounds for dismissal even if got notice CHALLENGING SERVICE/PERSONAL JURISDICTION 21 or 60 days to respond if waive- but if waive, will probably not challenge Raise rule 12 pre answer motion or Put it as defense in answer or Amend answer to have it as matter of course 15a VENUE Personal jurisdiction decides the state When venue improper, has to dismiss the case Venue decides the federal district in state o Completely statutory 28 usc 1391, no constitutional aspect o Options for venue 28 usc 1391 If all defendants are in state, pick any district where one or more defendants reside in Reside definition for venue o Individuals reside where they are domiciled/are citizen of o Entities- use district where are subject to personal jurisdiction District where substantial part of the events gives rise to the claim that occurred- if substantial enough, is sufficient, does not need to be the most substantial Bates- just events that gave rise to the claim must be substantial, does not need to be the most substantial, material, significant to the claim Consider claim and facts Only if no district available under 1 or 2, then use any district where defendant is subject to personal jurisdiction TRANSFER within same system/sovereignty o Standard Convenience for parties and witnesses in interest of jurisdiction If from proper venue to proper venue 28 usc 1404 o Choice of law of original venue with case applies after the transfer If from improper venue to proper one 28 usc 1406 o Use this to dismiss or o transfer in interest of justice to a proper venue o same analysis o choice of law of new venue will be applied FORUM NON CONVENIENS Rationale for forum non conveniens- when alternative court has authority to take case and when trial will create oppressiveness for defendant, inappropriate, may dismiss when filed in proper venue but more convenient, appropriate and adequate venue available outside of the federal system aka outside of the country test/gilbert test balances to do forum non conveniens transfer o private and where the evidence and witnesses are burden on the defendant plaintiff’s interest in original or new forum other practical problems in litigating in the current forum versus the new one o public interests state/interstate/international interests at stake what law will be governing? General fairness to court and jurors in original versus new location 2 factors that critical- law says fnc needs adequate alt forum before even file where plaintiff can get reasonable recovery Same o o o CHALLENGING VENUE as personal jurisdiction and service Must raise defense in 12 pre answer motion or In answer Or in amendment to answer in due course in 15a POLICY Accuracy Purpose of lawsuit- is the defendant liable o a decision in the case You want rule decide the merits underlying the case o Not necessarily on procedure Don’t want case thrown out bc in wrong court but because That is not the wrong decision, but it is not accurate Want it to be that Dr was wrong etc Also hope that it is correct- hope to end up with right decision Efficiency Don’t waste time and resources Rules will limit time that people have to do things This often cuts against other goals Consistency- same case Hope that if took case and litigated in court 1 and 2, get the same outcome Joinder- force to join things in case 1 to avoid possibility of inconsistency if done multiple times Uniformity- across cases Treating like cases alike One set of rules Finality Once judgement on case, want reliance on it, repose on that judgement, not scared that will come up again, wont get sued again fairness PLEADING COMPLAINT TEST 8a governs 3 factors to make a complaint test 1. Grounds for subject matter jurisdiction does not require allegations of personal jurisdiction or venue, but some statues might 2. Short and plain statement of the claim distinguish all legal conclusions from facts Legal sufficiency and 1. Look at the law, identify each element of the claim 2. All elements of the law must be alleged in claim If missing, dismiss without prejudice so that can go back and add 3. Is each element supported? If mentions the legal element but does not meet it, dismiss with prejudice 4. all elements must meet the legal definition Make sure they meet the standards Factual sufficiency 1. Ask how much factual detail must be included? 2. Standard comes from Twombly and Iqbal Look at allegations included Consider if they are facts or conclusions Does term have a legal definition? Or is it statement of what happened/fact Court will accept only the facts as true, not the legal conclusions made Ask "is there plausible claim from facts?" Has to be more then mere speculation, if not, fails Twombly Court said that the ILEC's actions could have just been for own interest The claims that plaintiffs allege have to have additional facts that exclude independent self interested acts that could be the explanation for the parallel behavior, cannot be able to be fully explained by the alternative reason Iqbal More than plausible Fact specific, use common sense 3. Statement of relief sought- can be different types of relief: injunction, damages, etc PROCEDURE AFTER CLAIM FILED Defendant can attack plaintiffs complaint/claim on failure to state a claim o Through Pre answer motion 12b6 or 12e or List failure to state a claim in their answer and then Answer- responding to the claim filing 8(b) or 8(c) – admissions, denials, affirmative defenses If deemed affirmative, then defendant has to bring up, if not, then plaintiff has to plead as element of their claim 8c not exhaustive list Both are still defenses Rule 12- procedural rule that tells defendant about what have to do, when, after complaint is filed After 21 days, have to file answer or 12b motion o o Later make motion under 12c for failure to state claim to judge on the pleading After pleading closed but not late enough to delay trial 12c for judgement on the pleadings There is mechanism to file these motions after the defendant’s answer Is still a motion on the pleading even though it is done after the answer Pleading- just documents that file and serve that gives info, telling a story, shows what will be litigating- gives notice that will eventually discuss this Motion- I want you to decide this now- triggers court to make decision POLICY ARGUMENTS Provide notice for defendants Purpose of balancing equities Defendants Fairness Not make them pay for expensive trial that might lose, one that has no obvious conclusion in sight Plaintiffs Accuracy Make it easy enough to get in the door, utilize discovery, looking at facts is worthwhile even if unlikely EXAMPLE FOR LEGALLY/FACTUALLY SUFFICIENT and CHALLENGING CLAIM Loss of consortium example Defendant files pre-answer motion to dismiss for failure to state a claim 12b6 Check short and plain statement Legally sufficient question (are all elements alleged or was one ignored) 1st look at law and use parallel language, all elements must be alleged in complaint Plaintiff has to be spouse of injured person, said -But were they married? Negligence on part of the defendant - Said was negligent- this could be a legal conclusion, not statement of the facts Example saying that they terminated me because x. that is a legal conclusion, cannot accept that as true Has to cause injury to the person injured -Hit Ann and she was injured Has to be a loss of consortium -Claimed that lost fellowship and sexual relationship Claim does not mention if partner/spouse, anything What can court do because legal sufficiency not met? Dismiss without prejudice Goes back and changes, addresses spouse, but mentions partner, not spouse Now judge dismisses with prejudice because legally inaccurate because cannot meet legal element even though they addressed it, cannot fix it! Because legally inaccurate, chances will never meet the legal sufficiency What if you just say spouse anyways Lying is sanctionable behavior Trial court has to dismiss if legally and factually insufficient, but appellate court can set precedent NOTE if legally insufficient, dismiss with prejudice even if factual sufficiency can be met Not legally sufficient because claim has to meet every part of law, mirror, be parallel Factual sufficiency Defendant was negligent- that is legal conclusion, need facts to make it plausible that this happened, what were they doing that was negligent? What can court do because legal sufficiency is not met? can dismiss without prejudice to allow them to bring the facts in to support these allegations If attorney, why file it anyways? o Still a reasonable argument to make that should be considered married o Trial court has to dismiss if legally and factually insufficient, but appellate court can set precedent o How does common law change? By pushing the envelope CASES Twombly o Had motion to dismiss 12bc failure to state claim factually insufficient Claim was a general allegation of contract or conspiracy o Claim did fail to state a claim, dismissed it. The claim alleged that there was Facts need to be plausible Conscious parallelism and Plausible does not mean there is asserted that that behavior was a possibility requirement, but result of an agreement enough fact to raise reasonable expectation that discovery will reveal evidence of illegal agreement Mere allegations also need additional facts to exclude possibility of other things Plaintiff’s obligation to provide grounds with more than labels and conclusions, no legal conclusion Needs enough factual matter to suggest the claim o Courts have to accept the facts as true, but not the legal conclusions as true Can still proceed even if seems improbable Does away with the low bar of "no set of facts" from conley and raises the bar to needing factual plausible allegations o Cant just recite or describe the conduct/legal contention Arguments for Dissent/arguments against Will be inconvenient, inefficient Why trying to protect the wealthy for time of court and money of people from the burdens of defendant if make defendant do a pretrial discovery? Looking at the evidence, however trial that will likely not be able to be proven with evidence unlikely, is important, good to get into court for plaintiff for merits and accuracy o o Iqbal Claimed that defendant adopted policies that violated const rights that led to his designation as person of high interest because of his race, religion, national origin Said failed to state a claim test o First, ignore conclusions of law and focused on the facts then o Said was just recitation of elements of const discrimination o Makes them conclusory, not assumed to be true o Second, apply plausibility standard to the remaining allegations of fact o Found: these are not plausible because of other potential reasons Dismissal had nothing to do with them being fanciful or unrealistic Arguments against: Good to get into court for plaintiff Conley- notice pleading, meet the policy of providing notice o Alleged failure to state a claim o Their complaint included: o Didn’t represent negro employees, violation under railway act o Asked for relief of declaratory judgement, injunction, and damages o Claimed actually insufficient because was a general allegation of discrimination o rule o complaint does not need additional specific facts o Low bar: Can only dismiss claim if seems that can prove no set of facts It just has to give fair notice and grounds for where it sits, because has opportunity at discovery Policy o Arguments for: Pleading is not game of skill o Goal of pleading is to facilitate proper discussion of merits o o DEFENDANT’S RESPONSE/OPTIONS Trying to dismiss or attack the claim to get it dismissed or get more time 12a- time to serve a responsive 12b and e (motions under this rule) (answer) pleading can extend time for answer -21 days after served because can wait until motion is decided to file answer- 14 12b- pre-answer motions days -If denied, must file answer in 14 days from denial 12e- make more definite statement, it is so vague that cannot reasonably respond, must give the reasons -Answer 14 days after fixed with more definiteness - Giving your answer- 8b, defenses, admissions and denials o Has to do so for each allegation in claim Admit Either expressly or by failing to deny Taken as true, no proof finding in trial about those issues Deny or “Admits allegations in this paragraph and denies each and every other allegation in the complaint” Careful, be specific as to not accidentally admit something Don’t plead contrary facts, just respond to substance because may be misconstrued- 8b2 Don’t say "was in brazil," nor too literal denial When denied, allegation becomes joined- needs evidentiary determination at trial Say lack of sufficient information for 8b5 Has effect of denial o Good faith under rule 11, cant use if have reasonable access or general knowledge/public access to info AND Assert all affirmative defenses Injects new matter into dispute Look at 8c- list of affirmative defenses If is that or can analogize, then must use affirmative defense Is denying sufficient to give notice to what you will argue in court? o TEST: Consider if it will raise new matter If other side would know that you will bring it up based on what is mentioned, fine to use denial If will bring up new, unforeseen material, use Affirmative defense POLICY ARGUMENTS for affirmative defense Provide notice for defendants Helps establish undisputed facts on which there need be no trial Or, can not show up o Will go into default and default judgement if plaintiff seeks it o Only do this if certain court has no personal nor subject matter jurisdiction o Because will have to collaterally attack the default judgement frcp 55 If does not go to court and goes into default judgement, can only attack on jurisdictional grounds Forfeits right to litigate on merits of claim if loses jurisdictional argument BURDENS FOR ANSWERING AND PLEADING 3 separate and independent that become relevant with the stage of o Pleading- who has to allege? Plaintiff in complaint or defendant in answer? Look at claim o Production- produce evidence to proof allegation made o Persuasion- persuade trier of fact Civil burden of proof- preponderance of the evidence WHO HAS BURDEN TO INCLUDE CLAIM EXAMPLE Look at the statute when writing the claim to be legally sufficient o Element that plaintiff has to prove to be legally sufficient or o Element that defendant can use as a defense for oneself to get the case done? One of statutes says defendant has to assert, one has to say the plaintiff prove it o State 1 LAW: Persons shall be liable for injuries caused by failure to take reasonable care; provided that no person shall be liable if the P’s own negligence was a cause of the P’s injury. State law 1- defendant has to raise that, it is in a second clause o State 2 LAW: A person who is himself not negligent but who is injured by the negligence of another, has a cause of action against the injurer to recover damages for all resulting injuries. State law 2 puts it on the plaintiff to prove- need not to be negligent before filing this claim. Puts it at beginning of sentence Say it was in fed court, what do they consider affirmative? 8c or analogous o Contributory negligence is one of the listed can see an affirmative defense o Affirmative defense is what defense has to raise in response So when defendant wants to answer, burden is on them to prove the contributory negligence from the plaintiff If burden is on plaintiff, has to make sure includes it in filing to meet legal and factual sufficiency or else can be dismissed under 12b6, failure to state a claim, if it is an element of the claim, it is on the plaintiff to raise it AMENDMENTS Depends on timing, typically done before trial o Pre trial 15a Can amend once as a matter of course From the date of complaint made, 21 days 15a2 After these 21 days, can still amend with court order Must be given freely when justice requires Accuracy/efficiency fairness Is it better to find out and amend now Prejudice to the other party because of versus waiting and wasting time and the delay? What will be impacted because of this money? delay -statutes of limitations run for plaintiff? -other party has good faith or does purposefully to screw other side over? -did with diligence? When found out and when took action? During/after trial 15b variance Amendments for this also given freely Aid in presenting merits Make sure no prejudice based on delay Court can suspend and allow other side to take time on new matter to allow for fairness for both parties Relation back 15c o 15c used in only one circumstance- if to add a claim when statute of limitations has run on the claim Test- relate back/make believe if it arose out of same transaction as the old one o If just a new claim, still needs to be from same transaction Transaction definition/test- could be what gave rise to everything? Considering broadly- plaintiff’s point of view or Narrowly- defendant’s conduct/action Look at the injury Overlap of damages requested for the claims Overlap of facts used to prove the claims Look at time Similar nature of claims and their underlying theories o Marsh Had filed breach/age claims initially Wanted to amend to add fraud claims, it was after statute of limitations so had to use 15c Court said breach was opposite from the fraud claims and would not give notice to defend against and defend for something 3 years earlier Nothing in original gave any indication of this If amendment is against new party, test o Same transaction o Verify that they had the informal notice during the statute of limitations to act Court also admitted that they could have known because know suit filed and they were involved, but needed to meet last requirement, too o Knew the identity of the new party but for their mistake about the identity (knew want to sue corporation, just didn’t know name) Smith had not known their identity at all and wanted to add them "new," had used placeholders before o AMENDMENT/AFFIRMATIVE DEFENSE EXAMPLE Defendant denies that they trespassed in answer, does not raise affirmative defenses At trial, defendant wants to introduce evidence of an easement (say did go on property, but had an easement), that’s why they are not liable Plaintiff objects this introduction of the evidence of the easement Basis for this objection? Rule that gives opportunity to object based on if evidence is not in pleadings 15b (amendments before and after trial)- can give free permission to amend the pleadings and add it in Evidence is not within the issues raised in the pleadings We are talking about easements, not trespass so the issue was not raised in the pleading Now ask if it should have been raised as an affirmative defense? 15b says you can still intro easement if meet this ruleaid in presenting merits of case and defense cant prove that it will be a prejudice to them Should freely be allowed Prejudiced as result of the delay? Problem here would be about notice Entire purpose behind pleading/answer/affirmative defense rules is that everyone knows what other is doing- give people notice Was the denial sufficient? 8b3- should it be denial or affirmative defense? Apply test or rule when something becomes affirmative defense and denial is not sufficient? Test: Are you injecting or introducing new matter into the complaint? Yes, no mention of easement in the complaint Could the plaintiff had some notice based on the defense submitted? No, had to bring up in affirmative defense to be fair Rule 8c1 "Release, license," sounds like easement If not listed as one of the options, see if there an analogous option Should the court allow the evidence in? 15b Court should freely permit- amendments are liked even though inefficient Still have to meet the requirements If too prejudicial should not allow Helps present the merits- accuracy What could a prejudice be? Arguments How is plaintiff harm plaintiffs case? They are screwed because of the delay Witnesses may have died, etc Did something transpire between when first filed and now that prevents plaintiff from making arguments then that cannot do it now Files lost Witnesses died This is the prejudice It is implicit in this rule that will forgo efficiency to get to accuracy, merits Continuance- jury go home, come back, plaintiff allowed to do whatever to address this But if so prejudicial, won’t allow the evidence in AQUASLIDE/AMENDMENTS EXAMPLE At first admits that manufactured it Can plaintiff amend claim without leave 15a within 21 days after serving it, without asking permission o Yes November 15th- can plaintiff another amended complaint? o No, can only do it once as a matter of course, 15a What are the pleading and responsive pleading- complaint and answer Nov 15- can defendant file amended answer without courts leave? o Can they use 15b? o No, because the answer in question is not generally required, the rule only applies to ones that are required Complaint, answer, done with pleading Amending answers, 15b does not really kick in July 2005- statute of limitations ran on the claim Feb 2006- defendant moves to file amendment to answer to deny they manufactured slide o Should it be allowed 15a2 o Yes, should freely be given but only when justice so requires Want to get to the merits, As judge, what will ask defendant? Why did admit then and why change now, and why did it take you so long to change your mind?- bad faith? When did you believe that were not the manufacturer If found out way earlier, bad faith that avoided the question Arguments: Prejudice here? Statute of limitations run out, now plaintiffs cant bring suit against actual defendant Has to find new defendant, and because sol run out, that is huge prejudice Court said it was prejudice, but did not find bad faith Allowed amendment in- turns out it was not their slide Favored getting a huge answer now before wasting everyone’s time Plaintiffs lost the case Then sued defendant in state court in reckless misinterpretation, won marsh plaintiff wants to amend to add new claim As defendant, what do when they leave to file a different type of claim, a fraud one? Statute of limitations has passed, seek motion to dismiss on statute of limitations Plaintiff response that Relations back rule 15c will allow amending a new complaint even if sol is passed Make believe that fraud claim is actually in original complaintas of a practical matter So when should allow this make believe? Apply test: Arose out of same transaction, conduct, occurrence of the original claims? Policy- why would this be the test? Underlying policy behind sol? If related back, repose not a problem because dealing with the same problem Should have had some notion that we would bring it up The evidence will still be accessible Analysis Relate back if Flesh out factual details, change legal theory, add another claim arising out of same transaction, occurrence, conduct Denied if Based on entirely diff facts, transactions, occurrence Og complaint included: Limited factual allegations to jan 20 1988, reasons for age and breach of contract actions No reference to before 1984, none based on promises Made these in amended complaint Didn’t seek damages for lost employment until new claim of fraud Distinct and not closely related, Claims are also substantially different Judge said it did not relate back, and therefor barred by statute of limitations because not allowed in through 15c Does not arise from the same transaction. Analysis: Overlap of facts used to prove the claims Similar nature of claims and their underlying theories, defendant would not be able to figure it out, same issue of not having the evidence because of time but also no fair because would not know about it Overlap of Damages requested for the claims Evidence to prove the fraud claim vs the evidence to prove the breach of contract claim, overlap not sufficient, does not suggest notice Most of the facts that dealt with original complaint was around Jan 20th Facts about fraud claim came out years before If considering evidence, would not have been caring about the ones from 5 years ago versus the ones that were centered around one daynotice, statute of limitations should still apply because repose is still applicable Thus, transactions are separate, does not relate back Smith, 15c to amend to add new party o Facts Cops thought car was stolen, they wrestled, abused him Filed in fed court for violation of rights Also filed in state court for torts Not uncommon to name john doe as defendants- point is that will try and amend later o Procedure When go to fed court, fed rules govern Smith wants to amend to add ross and miles to the complaint As ross and miles' attorney, what do? Motion to dismiss for statute of limitations for 2 years has passed Main rule Affirmative defense, statute of limitations is an affirmative defense to include in answer But there is exception to the rule that would benefit the plaintiff- 15c- can amend and add new party even if statutes had passed diff between this case and marsh case with respect to 15 Both cases amending to add a claim Marsh adding new claim against existing defendant 15c1b Smith is keeping claim against new defendant 15c1c 15b, same transaction requirement, is met The thing that is hard here- party has to receive notice of the action. 2 parts But they had informal notice Even admitted that they knew case was filed Should have known if smith did know their names, they would have been sued "But for a mistake," must identify correct party's identity Most of time 15c1c is against corporate defendants- when people have trouble knowing what the corporate name is, but know who meant Other elements of the purpose are met, so there is not much prejudice to the defendant… There is the repose, though, I guess Is this concern greater than getting to the accuracy? This seems a technical concern, given that notice/fairness would be met but the merits would not be allowed in POLICY ARGUMENTS Provide notice for defendants ENFORCEMENT Rule 11- sanctions o Prevent abuse of the rules o Can use rule 11, or court’s initiative, or 28 usc 1927 o Procedure of how to move for rule 11 sanction 11c One side serves to counsel of other side, Safe harbor, don’t file with court until other side -has 21 days to fix it -If not fixed within safe harbor time, file with the court The court can show cause and require the party to defend their actions on the court’s initiative- court may fashion an appropriate sanction to manage their own affairs and achieve orderly and expeditious disposition of cases when litigants or attorneys abuse the judicial process by acting in bad faith 28 usc 1927- Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct. Objective standard to determine if should be sanctioned o empty head but pure heart no justification, has to stop and think, goes to reasonable inquiry o What triggers rule 11? 11a/b- signing/presenting to court Presenting signed pleading, motion, other paper to court, When presenting, certifies did reasonable inquiry 11b, so should have actually done so Test: best of knowledge, information, belief, did inquiry reasonable under the circumstances as to not waste time considers the time and experience of lawyers, if had lots of time and resource and if this is a big deal, had to do lots of research/gather info, did they do those things- look at statute of limitations if bringing lots of same case they/someone else brought before, that is wasting time, etc Warrants did with its proper purpose Non frivolous claims 11b Claims that likely have legal support and will have evidence 11b Look at precedents Does it have more dissents- bad Temporal- bad Who had info, was it open and easy to access or hard to If finds violation, court has discretion for sanctioning 11c Limited to what is sufficient to deter Not compensate, not punish, not outrageous, either Sanction types o Non-Monetary o Monetary Fine to court Pay fees to opposing party that accrued because of the violation they created How determine amount? Subjective, not reasonable amount Was it willful or negligent? Is this common for the party? How important was the error? Effect on the litigation? Experience of the attorney? What resources do they have? The more, the more has to pay o Against who? Attorney If so, firm also in trouble unless outstanding instance Party Not monetary if represented by attorney for 11b2 violations because legal contentions are for attorneys Policy Policy/arguments: Deter baseless filings- efficiency and fairness Arguments against: allows for creativity, initiatives, pushing the envelope Not about punishment/compensation- it is about deterrence First- identify section of rule 11 violate 11b2 and 3 B2- need to be legal contentions B3- legal contentions need to have factual/evidentiary support now, or will likely have it after discovery CASE O'rourke o Was lawyer, was making huge claim, had time, but ended up making a mistake that a first year student would make, not reasonable under his circumstances o o o o o o o o Plaintiffs wanted declaration that act was unconstitutional, that they were acting beyond capacities as state officials Injunction of no more bad conduct Damages for 160b 11b was not about the superfluousness of the actions here Defendants filed motions to dismiss Lack of standing Lack of personal jurisdiction Plaintiffs filed leave to amend complaint Have to show court what want to amend Added more named plaintiffs Defendants opposed the amendment on ground of futility It was not going to give them standing, and new plaintiffs would not have standing, either With the amendments, were not trying to meet defendants points that have no standing, were doing their own thing Plaintiffs voluntarily dismiss claims against all the officials Difference between 2 dismissals With prejudice and- wanted this to make sure does not refile without prejudice Dismisses with prejudice on lack of standing that the plaintiffs suffered no particularized injury, dismissing all defendants DUE PROCESS Purposeful availment, foreseeability, relatedness, fairness factors PERSONAL JURISDICTION- need long arm statute and due process/const Does the state have power over the defendant? The plaintiff, by filing a complaint with the court, automatically gives consent to its authority POLICY Due process/constitutional rights of the defendant Individual fairness State sovereignty issues- in Pennoyer, cant reach out and take another state’s citizen LEVELS OF ANALYSIS Need a statute and constitutional/due process rights to proceed General personal jurisdiction is when the person or entity is at home, the defendant’s contact does not need to give rise/relate to the claim Means that any plaintiff can sue with any claim if not, need Specific personal jurisdiction where some relationship between the contacts and the claim and also minimum contacts Legislature in state must enact a law that gives personal jurisdiction to defendants 1st analyze if meet the statutes o Does defendant meet this long arm statute requirement or, if not, does it meet Look at the facts of the case and see if it applies o Rule 4k exceptions that are present and applicable? nd 2 analyze if meets constitutionality/due process o Does the application of the statute satisfy due process Due process for personal jurisdiction Purposeful availment with minimum contacts balanced with reasonableness, such that maintenance of the suit does not offend traditional notions of fair play and substantial justice o Policy argument: Availed by self to reap the benefits to justify being obligated to be adjudicated under? Before minimum contacts was a thing, had to consent, or o Quasi in rem- treat it as a contact now, do min contact test attach property to get jurisdiction, no relation to claim If value of attached property is only 200, that’s the max in quasi rem jurisdiction over neff, cant have jurisdiction of neff at large and all of his properties Extent of in quasi rem/jurisdiction is only up to the amount of the property, cant get other property But in personam is personal obligation of full amount of judgement o In personam attaching the person, person is in state, tag jurisdiction, etc o In rem claim about property where property is the claim 2 purposes basis for claim Basis for personal jurisdiction Can still have jurisdiction through waiver of right to challenge personal jurisdiction, consent, tag, at home Pers jur over defendant if get consent or waiver Forum selection clause in contract, if sign, have consented to that clause that says any action of contract will be filed here o Only deals with breach of contract instances o Choice of law is compelling and gives notice that can be used for balance test of notice but is not consent Consent- show up, in states, can still go to court to challenge just personal jurisdiction under special appearance, or don’t file rule 12 correctly, that shows consent and waived right to challenge Fed court dismiss for personal jur- can either raise as 12b6 motion, include in answer, 12c, or amend answer later rule 15 Waiving personal jurisdiction defense in fed court- fail to file rule 12 defense of no personal jurisdiction when filed another rule 12, court will find that you waived right to say lack of personal jurisdiction defense (raise as defense in answer) Defendant files counterclaim in forum state Tag jurisdiction o If person found within the state Physically in state at any point in time, time, reason, does not matter, serves you with process Is this always constitutional? Yes In Burnham, split in justification, but agree on constitutionality Scalia- intl shoe does not govern tag jur, but historically always used this Brennan's argument Intl shoe does govern Any time in state, by definition, getting benefits from state- public service, so obligated to have state adjudicate over you 2 prong test for minimum contacts/personal jurisdiction where not at home Meet both, but have to balance Intl shoe minimum contacts test Minimum contacts o Purposeful availment o Level of contact Once/isolated or Continuous and systemic o Relationship of contact to claim Gives rise or unrelated Reasonableness- if general jurisdiction, don’t need o D's burden o P's interest o Forum's interest Wants to protect its people o Interest of other states/nations o Minimum contacts- what contacts are there Purposeful availment- must be how contact got there Done through own purposeful availment and not through someone else’s unilateral activity need something more than unilateral activity, as to be benefited/privilege from the state justifies authority because benefitting from there, know benefitting, intended to and targeted stream of commerce- intent, substantial business, knowledge, target, focuses on acts, not expectations/awareness intent/effects- consider if targeting state, not person who is there, see where origin of out of state injury happened and how it impacts state. If trying to harm someone and know citizen there, needs something more, something that is defendant’s actions versus the plaintiff living there contract- look at terms, negotiations, o Issues of if the state court has personal jurisdiction McGee- reasonableness balanced higher than minimum contacts o Cali resident got insurance from arizona company o Tx took over the az company o Tx and insured did some business- sent his premium from cali o Sued tx company for a dispute in ca court o Company only did business in ca for this one person, but still had jurisdiction Defendant Had notice Inconvenient but not to point of denial Plaintiff Contract delivered in ca, premiums paid from there Ca should have interest to protect its people from insurance companies Reasonableness- state's interest Make them go all the way to their state and make them judgement proof? Hanson, need more than unilateral activity o the mere unilateral activity- Hanson moving to fl- cannot satisfy the requirement under the due process and create minimal contact for the company o Contact has to be established by purposeful availment, intention Gray, outlier, said that need awareness, not intent, for stream of commerce purposeful availment, argument against o o o o o o o Sued an ohio company in illinois Challenged on lack of personal jurisdiction Stream of commerce, had pa middleman did not matter if was middleman Seldom that products will stay in state Upheld personal jurisdiction Benefits from state's laws, even if indirect Product sold in state expected to be used there, the sale of the use trickling down to benefit the company If presume they have knowledge that selling outside, and getting benefits from selling, not unilateral activity anymore like hanson When defective product, not unreasonable to say that stream of commerce is sufficient contact to establish personal jurisdiction Different tests for purposeful availment Stream of commerce, contracts, intent/effects Stream of commerce test D purposefully directs activities/products with intent/purpose to target the forum state, focus on Ds ACTS not EXPECTATIONS D places product in stream of commerce and aware of sales in the forum state and such sales are substantial, not an eddy (numbers or $$?) Worldwide volkswagon- ok jurisdiction was reasonable, but no pers jur so means no minimum contacts- have to have both, but can balance o Did not find purposeful availment to seek benefits of ok Why The way contact was established with ok/purposeful availment defendants did not intend for car to get to ok. It was robinsons who drove the car there- unilateral activity not sufficient for stream of commerce Hansen unilateral example- she moved to fl, trustee had no relationship there besides her unilaterally moving there Cant be unilateral activity of third party, has to be defendants own actions to establish contact in forum state Stream of commerce can also be unilateral and thus not purposeful availment- once third party takes it and goes elsewhere, it is their action, not defendantsno intent, no act Court said the foreseeability of moving the car is not what we are looking for- then, anything mobile would be foreseeable- act, not expectation So that aspect of stream of commerce does not apply- went against gray Majority says cannot be so broad in how we look at mobility Argument: Practical business rationale Defendant should have some say/control/predict in where they want to be opened up If not seeking benefits, not fair to get benefits and make them obliged Tv shows up to your house Argument against: business of cars- dangerous and mobile, should make an exception because benefitting from highways of state, people are mobile and thus interstate customers will be giving you business there is already argument for why it is reasonable- reasonable for state where injury happened to want to hear it prove why should be considered as purposeful availment and thus minimum contact for personal jurisdiction Has to be foreseeable for defendants based on their own conduct for the small retailers, no evidence that ever sold outside of the tristate area Again, unilateral conduct even in stream of commerce does not count Audi did not challenge personal jurisdiction There are Audi dealerships throughout ok- selling in a place is minimum contact, gives rise if injury happens there and defendant maintains and services the same model there (ford) Reasonableness met of fair play and substantial justice Factors court take into account to decide hailing into state violates fair play- when long arm unconst/when no personal jur Balancing burden of the defendant Often hard to show burden because pretty easy to transport these days They were 2 corporations in usanot burdensome to point of unconstitutional AGAINST Forum state’s interest in adjudicating dispute Accident happened there, key factor in choice of law, states always interested in having it be their own state Plaintiff interest in obtaining convenient, effective relief What want to know about plaintiffs level of interest in suing state? If citizen, have most interest, and state has most interest in providing service for their citizens But are residents at the moment Interstate judicial system interest of efficiency Their witnesses, evidence, hospital records were all there- all go to efficiency interests Shared interest of several states in furthering substantive social policies Can appeal this decision? Requirement to appeal- when final decision is given- is decision of personal jur final? When judge says have jurisdiction, that is not final, because lets the case proceed What happens to the case because of the decision of personal jurisdiction or not- if said no jur, would be final because case would not continue Writ of prohibition- separate statute that grants parties ability to appeal/seek review of judge's decision that is not final Exist so that don’t waste so much time Statute 1257- allows scotus to hear cases from highest state courts on issues of federal law Basis for ok hearing people- a statute. Long arm statutes- trying to reach out and hail into own statesaid if apply this statute, will impact my due process rights Challenges to statutes facial- on its face As applied- fine as general matter, but apply it to me under facts that make it unconstitutional Scotus cant tell states how to interpret the law. But can say that if interpret that way, is violating constitution Mcintyre- machine that cut hand off Stream of commerce tests Purposefully directs Intent to target Depends on their actions, not what they can expect o Kennedy vs ginsburg Places in stream, aware of sales elsewhere Sales are substantial Shipping directly is not stream of commerce Brennan Yes, stream of commerce counts as long as knows will get there, and asahi knew, regular and anticipated flow of products Oconnor Not enough for stream of commerce to reasonably anticipate Need additional conduct o To indicate intent or purpose to serve the market of that state Designing, advertising, customer service Cant be unilateral act of third party putting out there is not enough, need some targeting, some intent that going there targeted usa but not nj, only 4 had ever been sold, so no foreseeability based on their acts o Contracts What consider? Must be connected to/related to forum Consider Prior negotiations The terms Future consequences Consider fraud or overweening bargaining power What makes the contract related to the forum? o Does court say jurisdiction because enter contract with citizen of state, that is enough No, needs to be more What are the factors that takes into account to determine? Terms of the contract There is statute Forum selection clauses if were given in the contract If contract say florida law govern, why argue that should go there? State courts want to interpret and apply their own law. Makes filing case more reasonable Burger king- reasonability and purposeful availment Look at what contract says because not enough to just have the other party be in another state, signing a contract needs more than the other person’s location o Terms of contract All are indications of what reasonable person would interpret Choice of law clause- fl law will govern Court saw this as one factor that give defendant some notice that could file suit in fl, o Creates awareness, could create inent, but not automatically consent o Increase fl's interest in having this case because want to interpret and enforce own law- adds to reasonability Forum selection clause- all claims arising under this contract filed in fl, that is consent, but WAS NOT INCLUDED IN CONTRACT What else suggested that purposefully availed self to florida? Could mcshera's travel to fl impact the other guys? Say that not deciding this question Need pers jur over each defendant individually Don’t attribute one action to other, might if relationship suggests it Signed in individual capacities rather than partnership 20 year contract Also presume that would be making profit Nature- long term business contract How long is contract and what is it for Included purchasing product from them, go with policy Creating relationship between fl company and them, not one off o Who did negotiate with? included people in fl o Court found that it was enough State authority purposeful availment fairness/convenience/reasonability Undoes it if notion that fraud or overweening bargaining power- in dissent kind of Seems unfair that just by entering in contract, has to open self up to fl Majority- if take the contract, take with it everything that comes with it and entails, so does not matter if has more bargaining power He was sophisticated businessman, represented by counsel, not under duress, no misrepresentation by bk Express aiming test o For intentional torts, needs intentional tortious action that is expressly aimed there o Causes actual harm that defendant knows is likely to be suffered in the forum state o Effects in the state test- all intentional torts use this Focal point of the story/d's actions Facts in the story Where do the sources for the story come from Focal point of harm P's residence P's work Level of distribution in state o Calder Difference between calder and keeton- keeton defendant had different contact with the forum state. Calder defendant is the writer and editor, not the magazine as a whole All about purposeful availment- have the contacts in cali, not benefitting from florida Libel is intentional- not intending to benefit there but intending to harm there- intentional targeted harm there How did the court find jurisdiction Effects/harm test- effects of the article- had poor effect on her reputation there. That is the harm. Express aiming test- It is in cali because all of her focus is there and the defendant’s actions Effects test factors Focal point of the story/d's actions- her and her career in the state o Facts in the story- has to do with the state o Where do the sources for the story come from- from the state Focal point of harm- happened in the state, where her career was in cali o P's residence o P's work Level of distribution in state- a lot, sold there and word got out there in general Consider focus of the article- resources and sources from people in cali, concerned what cali citizen was doing in calitargetting cali through article that wrote and knowing that harm would be felt there Not about having control over sales in cali, but saying that know would be bought there, and the libel would do harm there o Intentional tort- purposeful availment. About what is in story Effects test factors- want to create the harm there in that state Focal point of the story/d's actions o Facts in the story o Where do the sources for the story come from Focal point of harm o P's residence o P's work Level of distribution in state Computer server example If business nor person lives there, but uses computers in forum state, has to have some intent or purposeful targeting and knowledge that servers are there to count as personal jurisdiction o Keeton Which state's substantive law gets applied, what will choice of law spit out for purposes of statute of limitations? Ny citizen, little contact with nh, sues hustler magazine for libel there o Pers jur/purposeful availment because had direct sales in nh- contact gives reasonable claim, don’t need to look at effects because were intentionally selling it there, purposefully availing selves to the market Injury in new Hampshire/intent/tort Copies of it there- their intent/harm there Copies everywhere in usa o Plaintiffs contact- none Plaintiff does not need minimal contacts because consenting with the forum o Reasonability- new Hampshire would want to collab with other states to have location to do this litigation Plaintiff’s interests? Jury and judge/locale Getting witnesses, evidence to a place o Walden Sued saying that police officer deprived them from funds in nevada Lower court upheld, said officer expressly aimed affadavit because knew would harm people who resided there, need more than intent, need express aiming Scotus reversed Defendant, not third parties, must create contacts within the state Only connection with nevada because resided there, not targeting the state but the people who happened to live there Internet contacts Targeting plaintiff in forum via the internet is ok for personal jurisdiction but needs o Intentional injury plus min aiming at state o Some connection to forum state and not just connection to plaintiff who is located there- that is just unilateral contact o o o o o o Test that court used? Calder- effects test Was intentional tort, and any intentional tort uses effects test About purposeful availment Lessons Express aiming test cant be just that intentional tortious conduct, but need something more Something more has to be more than p's residence there Specific nature and substance of the alleged contacts remain significant Internet based contacts do not give rise to any particularly expansive or special minimum contact test. bottom line is still relationship among forum and litigation is key Stream/concept/analysis is the same here Just putting out there and could go anywhere is not really Purposefully availing Yes, was intentionally targeting business, trying to steal customers, but not targeting illinois, the only thing there is that company was there- walden case, unilateral Level of contact- does not matter as much as purposeful availment Once/isolated Continuous and systemic Sporadic At home/incorporated/principle place of business- automatic personal jurisdiction Relationship of contact to plaintiff’s claim Gives rise or o Burger king- contract was the contact with Florida The contract gave rise to the breach of contract claim o Look at facts and claim Unrelated o This would only satisfy general jurisdiction because already at home, does not need to be related or reasonable because how else would we get a hold of them if not at their home? What does related versus gives rise mean? o Bristol- purposeful availment but not related to because they ate and were harmed by the pill elsewhere, defendant’s selling/research activity in California was not related to their injury in the other state, so cali does not have pers jur o Reasonable but no personal jurisdiction because yes, availed selves, but claim did not relate to the forum state Had purposefully availed selves in cali and ohio, lots of contacts and activities Court did not like plaintiffs because had seemed to forum shop Not at home in cali, so now plaintiffs have to show relationship between business's activity in cali/forum state and their claim that happened in their own state Cali residents were good Min contacts- extensive with cali, lots of levels, gave rise because claim and injury, related because based on action in state, and reasonable Why plaintiffs thought could be connected to activity in cali?/ arguments for Same claim, liabilities argument- problem with plavix, sell here, admitting jur over cali residents, so why matter that same thing just happened in diff state? Court was not willing to extend that to them Unreasonable that pick up and go from ohio to cali unless think more likely to win in cali; no right to take advantage of cali Said unfair to defendant, not burden but just generally unfair How fix this situation? Need to be injured in forum state where claim arises and the defendant’s activity of selling is Affiliation between forum and underlying controversy, an activity/occurrence that takes place in forum state and is subject to the states regulation Primary concern is burden/unfairness on defendant and also placing limits on state power for each other Cant just have walden, just being in that state, need connection between forum and specific claims at issue Keeton- in state injury to residents of state, not no in state injury Sotomayor dissent/alternative argument Said whats big deal with adding more plaintiffs Not really unfair This case does not make efficiency possible Each plaintiff now has to sue in diff state? Limits plaintiff joinder Or go where they are citizen and join there Related test Injury in state Activities for same, identical product If show strong relationship between defendant, forum, and litigation, it is satisfied As long as have injury in forum and defendant has purposefully availed self of the specific market By serving the same product that gave rise to the claim And no evidence of improper forum shopping o Ford- related to Plaintiffs bought car in another state and injured selves on it in this state Causal connection (proximate/but for) is sufficient but not necessary, but ford wanted them to say needed causality Majority's opinion on the advertisements of the same car in the stateplaintiffs could argue but didn’t o Sotomayor says could have seen ad and bought the car in this state, so connection between their actions within state and the injury- but for causation What is connection needed between conduct and claim in the state? Injury has to occur in the state Not sale Once injury in state, then tie injury to defendant’s conduct in state Need injury in state, and activities have to involve the identical product What is the conduct Selling, servicing, advertising same model cars in that state Has to be same model, or will come out differently o Ford wanted to say that can sue where manufacture, design, sell, so could do in north dakota or washington Said should have concern about state's sovereignty Court- those states wont have much interest there because injury did not happen there- reasonability Purposeful availment clearly met and seems that the claim and defendant's action in forum state also connected because related to the same identical product- met related to test, too Property If own property in state, treat it as and evaluate it as a contact o Purposeful availment probably met, here, o Question is what is the relationship between property and the claim o Neff- Quasi in rem- property has nothing to do with claim in the case- only attach to get jurisdiction, even if purposefully avail self to own land in that state o After shaffer, this does not work anymore Contact is the land, yes, but land is not connected to claim So no jurisdiction at all Property needs some relationship to underlying claim o Hypos Fails mortgage, bank sues In rem bc dispute over property Do have personal jurisdiction because gives rise Falls on someone else's property Sues for injuries Does property give rise to the claim Need proximate causation But for, so meets ford, arises out of, still works If was not on property, would not have fallen Does not give rise, but definitely related to, some causal link, especially after ford where not even required o Intl shoe governs all 3 types, if cant meet intl shoe, no pers jur If are related to plaintiffs claim, as should be, how related does it have to be o Hypo o Hawaii Ad to go to hawaii, does go, gets injured in hotel Sues hawaii hotel in Massachusetts Mass have jur over hawaii hotel? What could be needed for related to perspective Relationship of contact to the claim o Proximate causation- narrow test o But for causation- but for seeing ad would not gone to hotel Defendant’s actions in state- advertising, related to claim of being injured in hawaii? Yes, but it were not for the contact of advertisement in Massachusetts, the claim in hawaii would never have happened. This works, so related to, gave rise, and had availed self by advertising to people in Massachusetts in general Reasonableness/fair to bring against the claim against the defendant in this state?- if general jurisdiction, don’t need D's burdeno Hard to argue this now bc of technology P's interest in adjudicating in this forum o Are they a resident/citizen? o Was this the location of the injury? Was this where the conduct/activity that gives rise to occurred? o What law is governing in the forum? Forum's/state’s interest in adjudicating in forum o Wants to protect its people Interest of other states/nations/interstate o Is there a joinder of multiple plaintiffs or defendants? o Location of witnesses, evidence o Other states’ interests and arguments for why this forum is better to adjudicate in Specific jurisdiction o Purposefully availed self by doing business there o Claim arises directly from that contact of purposeful availment o Specific personal jurisdiction- contribute towards purposeful availment Advertised, marketed there Sent products directly there Made money from that transaction Could foresee suits there through actions Claim arises directly from that contact Witnesses there CHALLENGING PERSONAL JURISDICTION UNDER RULE 12 Answer in 21 days or 60 days if waived service unless challenge personal jurisdiction by o Defendant filing rule 12 pre answer motion or o Placing the defense in answer or o Amending their answer with this defense as matter of course under 15a Can use personal jurisdiction to collaterally attack prior judgements PERSONAL JURISDICTION CASES Pennoyer- either in state or in quasi/rem jurisdiction (needs land) court's lack of jurisdiction over neff Default judgement because he didn’t show up What was the attempt to notify him? Did it in oregon newspaper Oregon law said was enough notice to publish it in newspaper- courts need legislation Did mitchell comply with provision of the statute? Calls for attachment of the property Can publish, but must attach the property of the nonresident If he had attached, would that have solved the notice problem? Assumption in relation to policy, legal fictions Yes, because will have assumed he would have notice of the attachment on his land Law assumes that property always in possession of the owner, either through him or his agent If notice was the only problem, what if sent someone to cali and tell him? Would then have personal jurisdiction? not basis under the code, have to meet both const and statute Constitutionality and policy What if code allowed it? Still wouldn’t have personal jurisdiction- due process Each state has exclusive right to people in its own state 2 basic principles of state sovereignty/public law Must be physically in No state can have direct over people outside So oregon cant reach out and get serve him in cali unless it is constitutional because of sufficient connections with state Since he was in cali, the only way to get jur is to attach the property Solve the notice problem Solve the power problem Attaching property from a power standpoint, not notice If did not, what could happen to the property neff could sell to someone else So have to assert authority over people In addition to serving them Intl shoe- Modern era International shoe- does not need land anymore, presence, or consent, but can have minimum contacts o Re-envisions how look at personal jurisdiction o Facts Wa state sues them there for unpaid unemployment tax Personally serve the sales agent in wa, but don’t represent international shoe Also send mail to hq in missouri Does wa state have authority to hail into their court? o Intl shoe appeared specially to set aside the notice Appearing specially- if appear normally, would be consenting to jurisdiction Show up to challenge jurisdiction of court They are challenging both in court adjudication and legislative authority in court Do my courts and laws govern over you? o Trying to prove not in wa state for both rules, but we are focused on question 1 Does having no sales but lots of sales agent constitute being in the state/having personal jurisdiction? Court says Presence of corp merely symbolizes activity in state What type of presence required by court for personal jurisdiction? Does not need to be physical Minimum contacts such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice 2 characteristics of the contacts/activities within the state that court finds being minimum contacts Frequency/level of the contact Continuous and systematic vs One contact, isolated, random What trying to feel about nature of the contact, what trying to analyze Relationship of activity to the claim in the case Gives rise Completely unrelated If continuous and systematic and gives rise, always yes If isolated and unrelated to claim, always no Other combinations are maybe Policy and justification Why is the level of activity and relation of it to the claim justify the court asserting authority Privileges give you benefits, those give rise to obligations- whole rationale Want obligations to align with benefits receive How burdensome to defend in that state if do have relations there Convenience to the defendant Justice black's concurring opinion- agrees that wa state has pers jur, concerned that this was easy case even under pennoyer- sales agents were physically there. Don’t represent but are doing intl shoe's business Don’t take super easy case to change whole paradigm, bc if are, doing so to change harder cases By using this case, also suggesting that wouldn’t be met under pennoyer o o o o o o o o o Says could be more restrictive than pennoyer Nature of the doctrine- vague due process standard never intended to strip washington of right Term of fair play, minimum contact, etc, are uncertain, confusing terms- giving judges lots of discretion, here Policy perspective- gives judges too much discretion Highly fact specific, could come out both ways Not meeting uniformity standard Same case could be argued both ways Use notes on pg 44-45 PRACTICE QUESTION Intl shoe makes shoe heels, sells to penn company who incorporates into their own shoes, person in Oregon injured The contact is the intl shoe’s heel that is incorporated into the show Questions to ask/test- min contacts? Related to their claim? Gives rise Frequency? Could say its just one shoe, but also say they sell shoes to Oregon Not really systematic because no sales agents, but still have substantial amount of shoes that are being sold there Why care that there is an intermediary state stream of commerce- do they know it will be distributed there? Why look at their contacts in state? to see if benefitting Purposeful availment If get benefits, can tie to obligation So, is intl shoe benefitting from Oregon? Not directly seeking the benefits of Oregon, but still getting profits But didn’t seek out, so fair to make them obliged as a moral standpoint?? Acts vs expectation for purposeful availment for stream of commerce, also need to seek and target that state No purposeful availment DUE PROCESS RIGHT TO COUNSEL 3 factor test the court evaluates/balances to see if there is a right to counsel o Private interests at stake- the more foundational/significant, the more right Physical liberty or criminal leads to automatic right to counsel Property liberty Familial liberty o o o o o Government’s interest Aligned with private interests? Economical or efficient to provide counsel in such a situation? o Risk that private interest will be erroneously deprived if no counsel considering Formality of the proceeding Is it evidence-based Adversial Punitive even if no physical liberty at stake? Nature of the substantive law- difficulty of understanding? Nature of factual issues o Hard to comprehend o Unfair o Technical o Will there be expert testimony? Individual’s own abilities o Educated? o Distressed because of life situation or intimidated? LASSITER The court found that only met with child once, without cause, willfully left in foster care for more than 2 years, didn’t follow with plans to make constructive planning for future of child Court said had sufficient time to get lawyer, but she appealed for deprivation of due process Private interests at stake Liberty Physical- not at stake here, though, or else would be automatic When state initiates power, then get right to counsel property Family- this one Right to be a parent, how important compared to everything else? Have due process right to childs edu, should also have to loss of being parent to child Both sides agree but say not as high as physical Property Government's interests Child's welfare High interest to remove him, but Making accurate decision presupposes this Social services typically supposed to let keep child Efficiency Not as big of a deal as welfare or parental right One of lowest interests Both agree here The risk the procedures will lead to erroneous deprivation of interest Formality of proceeding Adversarial? Punitive? Evidentiary rules Hard to know what other side will present against her because missed hearings and no lawyer Nature of substantive law? Law here not straightforward, lots of legal terms Have to understand and argue Nature of factual issues Abstruse Technical Unfamiliar Expert testimony? How complex are the facts, have access to them? Parent's abilities Educated Life situation Distress How can you be composed here? Intimidation Inarticulate Confusion Majority said could be but not here but how is this a fluctuating test? Declined to analyze in greater generality What about the procedure would change, how else would the cases differ? We have an interest in uniformity and Doing each test itself if less efficient o When Uses o o PROCEDURE plaintiff asks for counsel, is denied, and loses the trial as basis for appeal claiming that Should have been given counsel and Previous judgement should be void for lack of due process in denying the counsel DUE PROCESS RIGHT TO NOTICE/SERVICE Rule 4 or statute and constitutional due process right o In federal court o Waive service or serve 4d o What has to be sent o How can you send it o Reasonable time to wait after serving, usually 30 days until Can ask for fees and costs of serving because did not waive right to serve, has to not have good cause Effect of waiver o Gets 60 days to respond versus 21 days o If fails to waive, has to cover costs and fees unless has good cause not to If serving/defendant does not respond to waiver, must o Serve personally an individual 4c, 4e o Serve by person who is not a party, 18 years old o Where- dwelling National development standard Place where indicia of permanence that indicates it is likely to result in actual service Takeaway o Judicial standard/interpretation of the term o What looking for when evaluating if dwelling or place of abode? o Sufficient indication of permanence that will be there when served o Purpose of rule 4- provide actual notice to defendant Legal points o Court said that can have more than one especially in this day and age Not trying to find the best or the one Relevant to this case- parents house can also be one of her dwellings See what facts they look at here o Amount of time that he spent, o Furnished o He was also present at time of service- this fact would change their decision, but said did not have opinion on it yet o Hotel room would count, not paying, not furnishing but there for long time, some indicia of permanence "Extended time" important, could say that longer means more indicia of permanence What other facts would want to see o Own room o How is the room maintainedrelationship with parents and home o Reason for visit, is it common o Key is how long she is there Longer there, more likely to find Leave with person of suitable age/discretion who resides there State law service provisions where the court is located or Where service is affected constitutional right to due process o mullane standard notice has to be reasonably calculated to inform intended parties of action and afford opportunity to present objections applied in cost/benefit test in light of reasonable alternative methods used balance to see which is the most proper method to use interests of the defendant type of proceeding- losing house or worse, open to errors? Need to prep reliability of method and reliability and expense of other usual methods o green applied the mullane standard, that outweighed them following the statute, because they did it but should not have done it yet before trying better things. She came and said that not served with due process because of mullane standard Statute Officer must try and personally serve, but if cant find, May leave copy with any member of family over 16 and If that person is not found, can post on conspicuous place on premises What Constitutional standard/legal- mullane Notice reasonably calculated under circumstances to notice and Afford opportunity to present their objections Process used must be reasonably certain to inform and Must not be substantially less likely to notify than other feasibly and customary substitutes Officers knew would be torn down And also have mail service, highly reliable, could have used that first? Balancing test again to see what due process requires Private interests at stake o Type of proceeding- open to what kinds of errors? It is eviction, want to make sure that will get it by trying other things first Reliability of method used under the circumstances o Do kids take it off, know that? Yes, knew that Reliability and expense of other available methods o Was this the best you could do? o Defenses Even if met statute, application of the statute to me is unconstitutional, violates due process, should throw out the verdict Collateral attack- void because did not give notice for first case o Challenges: Could challenge constitutionality of service even if noticed? No because the deal is about being notified Opposite with challenging under rule 4 If didn’t do correctly, does not matter if received, it is grounds for dismissal even if got notice is allowed- make sure meets statute and const Sometimes mail not sufficient, needs to be certified or else could be thrown out Email o Yes, if out of country o Can supplement with facebook o Show reasonably calculated to give actual notice under mullane o Use if other methods not practical Direct message allowed, also supplemented by emails, international, don’t know how else to find and serve in usual ways Newspaper and posting near property sometimes insufficient because reliance on electronics now- consider the situations at hand On door rationale- assume that maintain superintendence of property Both have been limited, entitled to mail in usa case Service process- ceremonial method of right to exercise pers jur o Only once Need to meet statute and const. o POLICY If don’t know proceeding against you, not fair at all because cant even show up and defend self More chance of accurate litigation CHALLENGING SERVICE/PERSONAL JURISDICTION 21 or 60 days to respond if waive- but if waive, will probably not challenge Raise rule 12 pre answer motion or (remember that if you do any other 12 premotion, have to bring these up or it will be waived) Put it as defense in answer or Amend answer to have it as matter of course 15a VENUE Fairness in pers jur, now focus is on being convenient for everyone involved Personal jurisdiction decides the state Venue decides the federal district in state o Completely statutory 28 usc 1391, no constitutional aspect o Options for venue 28 usc 1391: If all defendants are in state, pick any district where one or more defendants reside in Reside definition for venue o Individuals reside where they are domiciled/are citizen of o Entities- use district where are subject to personal jurisdiction District where substantial part of the events gives rise to the claim that occurred- if substa ntial enough, is sufficient, does not need to be the most substantial, and does not need to relate, only give rise Bates- just events that gave rise to the claim Question- is ny district proper venue for this case o Yes, consider the receipt of the notice itself Action and content of sending deemed to be abusive under law o Steps/test: Always, for pers jur and venue, consider what the claim is and Have to know the claim- for pers jur (related to, gives rise) and venue because relationship to the claim is very important analysis How it relates to the defendants actions Has to give rise, important if the claim is the evidence that you will use in case Bates example: the letter is the evidence in deciding if it was abusive o Debtor harmed when receive this notice- so the letter is substantial and key piece of evidence and law trying to avoid this harm that he suffers, and he suffered it, and happened in the state. If didn’t happen or didn’t happen in state, would not have injured at all o Venue can have multiple places now could be where action occurs, where defendant manufactures or designs are all substantial parts that gives rise to claim o Significant, material to the claim o Does not have to be the most substantial, as long as it is substantial What facts o Look to elements of claim, and facts needed to prove each of events/facts needed to prove it Only if no district available under 1 or 2, then use any district where defendant is subject to personal jurisdictionPrimary motivating goal of venue statute to find district in which to sue o Convenience, efficiency TRANSFER- always within same system/sovereignty If from proper venue to proper venue 28 usc 1404 o Standard Convenience for parties and witnesses in interest of justice o Choice of law of original venue with case applies after the transfer o Piper didn’t challenge, wanted transfer- change of venue from proper to proper What statute used? 1404a- og venue correct, want convenience, so cant challenge venue because technically proper You are judge- factors to decide proper to transfer piper from cali to penn Analysis: Piper resident of penn- for moving to penn, saying will be convenient at home Is there anything in cali? Nothing Easy transfer case because inconvenient for everyone, witnesses, evidence, all in penn, defendant in penn, plaintiff in scotland Standard 1404a that using for when should transfer- for the convenience of parties and witnesses in the interest of justice, then should transfer If from improper venue to proper one 28 usc 1406 o Use this to dismiss or o transfer in interest of justice to a proper venue o same analysis o choice of law of new venue will be applied piper removed to federal court first so then could transfer to fed court in another state cannot transfer from cali state court to penn state court FORUM NON CONVENIENS/piper Rationale for forum non conveniens- when alternative court has authority to take case and when trial will create oppressiveness for defendant, inappropriate, may dismiss when filed in proper venue but more convenient, appropriate and adequate venue available outside of the federal system aka outside of the country then defendant can ask to dismiss under forum non conveniens and seek to refile in the new forum choice of law of new forum will apply can deny fnc if there is better venue in usa o Have to be in venue in usa that is best venue to make the case that have to dismiss o If transfer 1404 it earlier on, will say go to penn So get to the best place in usa, then say there is still better forum outside of usa, seeking dismissal test/gilbert test balances to do forum non conveniens transfer o private and where the evidence and witnesses are burden on the defendant plaintiff’s interest in original or new forum other practical problems in litigating in the current forum versus the new one o public interests state/interstate/international interests at stake what law will be governing? General fairness to court and jurors in original versus new location Forum non conveniens standard/rule- how decide whether to dismiss case based on forum non conveniens Gilbert factors- common law Private and Access to proof Where is everyone, plane is there, hard to move, some witnesses there Witnesses to manufacturing here Ability to compel witnesses If outside of us, not subject to jur of our courts, hard or impossible Jury view of scene Show them in scotland easier Other practical issues regarding trial Case already in uk- joinder question, why not just join this one with the one over there, about same accident, could get inconsistent verdicts if have separate judgements Useful to join all defendants in same lawsuit Public Localized controversies decided at home Problematic if keep in penn- having to apply scottish law in us court for hartzell. Also applying penn law based on the defendants for piper Forum non conveniens arguments- will be super confusing for jury/court So why do diff laws apply to each defendant Goes back to how we got here Piper If file in cali, cali choice of law applies- point of filing in cali Of 2 defednants, piper should get cali because was proper jurisdiction before transfered Hartzell challenged jurisdiction in cali, so was improper When come to penn, penn law will govern, penn choice of law will govern: when transfer, use new choice of law Penn choice of law spit out scottish law If started in penn, would have given scottish law, plaintiffs wanted choice of law to spit out some us law, and it spit out penn Removal statute said moves it to another proper venue State where you sue important because gives choice of law Want choice of law that spits out what law you want When you transfer, if between proper venue, choice of law goes with When go improper to proper, choice of law does not go with Hartzell- no pers jur, not proper, so choice of law does not come with, adopted the one that got into Forum at home with law governing Avoid application of foreign law Fairness of burdening public with jury duty Cant say better forum, let me move, and now say sol run, because alternative Often not required 2 factors that critical- law says fnc needs adequate alt forum file where plaintiff can get reasonable recovery Plaintiff chooses forum, courts like to give deference to it Want to allow plaintiff to be master of complaint and case and Forum non conveniens- dismisses even if have jurisdiction not done often because of deference given to plaintiff's personal jurisdiction: state venue: district CHALLENGING VENUE just say that’s not where the substantial events that gave rise to the claim… Same as personal jurisdiction and service o Must raise defense in 12 pre answer motion or o In answer o Or in amendment to answer in due course in 15a SUBJECT MATTER JURISDICTION Decides whether to file in federal or state court now no before even place choices Main point Federal court is court of limited jurisdiction so need a basis to bring in there Policy for this there is a constitutional requirement (which is interpreted more broadly) and also statutory requirements Challenges usually pursuant to the statute, not constitution Strategic reasons to choose one state over the other why choose one over other? Turns on nature of jury selection, judges involved, dockets, location in state, familiarity w rules of procedure, evidence, etc 2 types of fed jur: diversity and federal question Diversity Policy protect against out of state bias Rule 1332 Mas case 2 reqs at time of filing complaint: complete diversity AND more than 75k (cant be exactly) Complete diversity Any plaintiff cannot be citizen in same state of any defendant Citizenship of entity- fact based o Individual’s citizenship: their physical presence in state, intent to remain indefinitely, factors that demonstrate connections w that state, o tax, o driver license, o property, o any type of connections to demonstrate that will remain there o Corporation’s: Their state of incorporation and principle place of business hertz, principle place of business is: corporate headquarters- where primary decision for corp takes place Non incorp- all members of entity and all their citizenships More than 75k in controversy Good faith allegation in complaint and notion that no legal certainty that damages can’t be met rivas o Legal certainty for damageso statutory limits on amount of damages o if seeking type of damages and law wont allow it (if, say, punitive damages not allowed under the law, then cant be included in meeting amount) Consequence: Court may impose costs on party who filed in fed court if judgement is less than 75k How to meet that amount- aggregate When aggregating claims to meet the amount, o claims against same defendant can be aggregated as long as o represent different damages/injuries o NOT different injuries to get same damages o Different parties- CANNOT aggregate them. Can count non monetary relief in this calculation? o injunction court will value the injunction to the plaintiff, or determine what the cost will take for defendant to comply with the injunction Federal question Policy more uniform interpretation, application, enforcement of fed laws 1331 Rule claim arises under federal law 2 legal elements of arising under the federal law o Well plead complaint motleyo must be plaintiffs statement of claim that shows the claim is based in fed law. o When p must raise fed issues to support well plead, then arises. o CANNOT be federal issue raised by defendant as defense or counterclaim o NOR by plaintiff in response to what argument defendant might raise When federal law creates the claim, or claim is for violation of federal law or constitution, then those clearly arise -Grable, merrel dow o When claim created by state but incorporates federal question 4 elements o 1. Necessarily raises fed issue o 2. Federal question is actually disputed o 3. Federal question is substantial to federal government’s interest. How important is issue to fed gov? nature of issue- example: taxes very important to fed gov. is court interpreting law or applying it? Answer: Interpreting is more important than applying. Public or private interests of parties? Note: If federal question is incorporated in claim where there private cause of action in fed statute, then it is more substantial than when no cause of action allowed by federal statute o 4. Fed courts can entertain the claim without disrupting balance of state and federal court Consideration of: if let this claim in door, will likely involve many more future cases that can use argument to get in door and flood with state law claims not intended to be interpreted by federal court by congress? -grable- unique, question of service for fed taxes involve property claims. Very substantial -merrel- violation of federal statute in negligence per se, court said then can use any fed law in any negligence per se claim, that would flood with similar claims, thus did not meet that element Challenging subject matter jurisdiction any time throughout entire litigation, even at scotus, or court of appeal. Policy so important that lack of it might be raised by court itself Removal and remand 1441 1446 Removal- when plaintiff files in state, can remove it to federal court? Involves 1441, 1446 1st question- does federal court have subject matter jurisdiction over the case in first place? o YES, through if smj based on fed question, may be removed and state law claims with no jurisdiction can be remanded to state court If smj based on diversity, must have jur under diversity, AND no defendant can be citizen of state where case brought When remove to fed court, which venue? remove to the federal district court that embraces the state case. claims that arrive in fed through removal, must go there, that’s the venue provision 1446 all defendants must join in removal and removal must be filed in 30 days of receipt by each def of pleading showing basis for smj If removal based on diversity, o cannot remove more than one year after original action Challenging removal remand motion to challenge defendant’s removal using 1447. If challenge lack of subject matter jurisdiction, can be raised any time If on any other basis, other procedural basis, o must file remand within 30 days of receipt of removal motion SUPPLEMENTAL JURISDICTION UNDER SUBJECT MATTER JURISDICTION 1367 all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy Gibbs interprets 1367, sees what it means, says it is deriving from common nucleus of operative fact Purpose of supplemental jurisdiction over a claim is to get subject matter jurisdiction when there is no independent form of subject matter jurisdiction 1. when no diversity 2. when no federal question Can use once a case is already properly in federal court to bring in additional claims (anchor claim) Requirement for the supplemental claim/to meet 1367/court will have authority • That derive • From a common nucleus of operative fact • Arise from the same transaction or occurrence • One fact in general- broader • As the claim that invoked original jurisdiction (anchor claim) • Diversity • Cases in federal court based solely on diversity • Cannot use supplemental jurisdiction to bring in claims • By plaintiffs against persons made parties under • 14- impleader • 19- compulsory joinder • 20- Permissive joinder • 24- intervention By persons proposed to be joined as plaintiffs under 19 • • By persons seeking to intervene as plaintiffs under 24 • Claim brought in by a joined/co-plaintiff that • Does not meet the 75k requirement • Can use supplemental jurisdiction if • Claim arises from common nucleus of operative fact from • Claim that invoked the diversity of citizenship • BUT • The supplemental jurisdiction cannot be used to override the • Complete diversity rule between co-plaintiff and defendants • • • Federal question 1367b if anchor claim rooted in diversity, then cant have supplemental jurisdiction that we would under 1367a Policy Purpose is not allow plaintiffs to defeat purpose of 1332, notion of complete diversity or citizenship and mount in controversy • • • • • • Note • • Supplemental jurisdiction does not restrict defendants in diversity cases So • Nondiverse third party defendant can • Invoke supplemental jur to • Assert claim against plaintiff • Even though • Plaintiff may not then assert counterclaim against that defendant • Under supplemental jurisdiction if the supplemental jurisdiction would go against the diversity rules in 1332 (over 75k and between people of different states) then there is no supplemental jurisdiction over • claims • plaintiffs bring in against • people made parties under • 14- impleader • 19- compulsory joinder • 20- permissive joinder • 24- intervention • People propose to be joined as plaintiffs under • 19 Wanting to intervene as plaintiffs under 24 • Loophole in 1367b • Multiple plaintiffs • joined under rule 20 • filing claims against the same defendant • court will allow the claim under supplemental jurisdiction if • one plaintiff meets the 75k and above but • others do not • reasoning- this is not exempted by 1367b • but • if plaintiffs are not diverse • court has held that • will not allow jurisdiction (will be exempt under 1367b) • over those claims even if it is not • expressly exempted under 1367b • rationale • important to maintain the diversity standard for fairness more than the money 1367c- can choose to decline jur over supp claims (discretion) 4 instances • The supplemental claim issues are novel or complex state law • Want state to decide such for themselves • Supplemental claims predominate over the anchor claim • • The evidence • Damages sought, etc • Differ • Have the anchor claims been dismissed prior to trial? • If yes, • Can dismiss the supplemental claims • Exceptional circumstances or compelling reasons Despite these, gibbs pushes for courts to retain supplemental jurisdiction over the claims • Policy • Efficiency • Fairness • Important federal policies that are wrapped in supplemental claims even though supplemental claims are claims under the state law ------------------------------------------------------------------------------------------------------------------- Can bring up at any time 12h3, cannot waive by not waiving under certain time Need subject matter over each claim and person o With diversity, cannot piggy back off of someone else qualified, needs independent diversity jurisdiction Can use o Alienage: 1332a2(non us citizen vs us state citizen) needs above 75k Us citizen living in london not alien because citizen of us, not the country living in If have, any federal court in the United States could hear this case — in terms of subject matter jurisdiction. Moreover, state courts have general subject matter jurisdiction, so any state court in the United States could hear this case — in terms of subject matter jurisdiction o Diversity jurisdiction (make sure to determine citizenship) + amount in controversy Strawbridge 1332a Needs complete diversity Constitution allows minimum (just one) so can have statutes that say that, but federally, need complete because of frcp 1332a Dc, for purposes of diversity jurisdiction, as us state Citizenship of Citizenship means domicile- true and fixed permanent home that have intention to return to o Us citizen not living in us state it not citizen of us state, so no diversity of citizenship o Only us citizen can be us state citizen Timing- the citizenship when claim is filed o Once do that, can go anywhere you want Changing citizenship- requirements, analysis is facts based o Picking up residence and (in worldwide, intention but had not moved there yet, so not citizen) o Intention to remain there There for school? Not enough to testify about intent, needs support by objective facts Moving shows no intent burden of proof: burden of persuasion with person trying to establish the subject matter, not the person who challenged it o example: if person with burden has not proved, then find no sbj because person supposed to prove smj did not non-us citizen is not us state citizen even if lives, so no diversity citizenship, but instead alienage Individuals- mas o Entities- Randazzo, hertz, Belleville o Where incorporated o Principle place of business 1332c1 o Can have multiple citizenships o Randazzo Use terms of art that court wants Domicile does not work with court o Hertz Principle place of business Will state consider this corp a citizen or not? Nerve center test: headquarters, where give direction, where executives make decision Policy: efficiency, predictability, administrability o Belleville non corp entities Where the owners/partners/members are citizens, so could be every state Not principle place of business or registration Amount in controversy- has to be more than 75k, cant be exact How calculate? Plaintiffs cannot add amount together o Each individual claim in 1332 must independently meet it o The judgement amount does not matter Good faith complaint amount look at complaint, will not wait till end o Incentives not to allege amount over (???) Damages asked for must be legally available Aggregation of separate damages that represent diff things with one plaintiff counts o Multiple complaints and one defendant Cant add amounts from 2 diff defendants Amount will not be made in half with 2 defendants if files jointly, if claimed 80k, will stay 80k, not be counted as 40 for each and thus fall under 2 diff tort claims and 2 diff theories to hold liable for same injury for 50 and 50 o One defendant but 2 diff claims/theories o Was injured for 50, if win one or both, still only 50k Claims against one plaintiff and one defendant can be aggregated, regardless of transactionally related Seeking an injunction- court picks one of the below o Value of injunction to plaintiff or o Defendant’s perspective- look at cost to defendant to comply with injunction Mas Rivas o Looking at facts and complaint and allegation, plausible that will get more than the smj diversity amount? o Not about if it is plausible to get what we asked for 75k Policy About the bias against people from the other state o Or o Federal question 1331- needs to also be in const and statute, decided at time of filing of the complaint by plaintiff, no amount in controversy needed o Well-plead & grable test for deciding under 1331 o Constitutional interpretation says as long as federal is an ingredient, will have authority. But if under statute, will need well-plead claim test “Arising under” louisville and Nashville Mottley/well-plead complaint rule, only plaintiff can bring it up in claim o Claim was for breach of contract, but issues in appeal was if the statute would apply here and whether 5th amd might apply- seems to be issue regarding interpretation of the federal law o Federal law needs to be basis for plaintiff’s claim o Court itself can bring up 12h3 at any time, it did o The fed issues could come up in the defense… but that is not the claim Policy/rationale: Don’t want plaintiff bringing up defenses, that is defendant’s burden Can’t go around guessing what defendant will do o Well-plead claim: plaintiff’s statement of cause of action shows it is based upon fed law or constitution Cannot be counterclaim/affirmative defense raised by defendant arising under fed law- has to be from plaintiff Declaratory judgement: defendant filing the suit that has to do with federal question Look at if plaintiff were suing, what would it be for? What would their claim be? Evaluate that Also, in declaratory judgements, often have to say what the plaintiff wants, so makes it easy to see what plaintiff’s claim would be “Arising Under Federal law” grable and sons- centrality How central must federal question be to the claim? Cases that are created by state law can still have smj if arise under fed law and meets grable test Each has to be met o Federal component is substantial factor o Does not disrupt balance of powers between state and federal o It is necessarily raised o The federal issue is actually disputed APPLICATION OF TEST Federal component is substantial factor o Take it to decide substantial interest to the federal gov, not really about the parties o Factors court takes into account Topic- look at importance, implications and importance to the gov (taxes, ability to enforce people to do things VS safety of people, not really government’s interest) Consider any widespread, public (always more substantial in effect) or private impacts Intent to interpret vs apply- see what the law actually requires? And will also impact everyone, so substantial interest Does not disrupt balance of powers between state and federal o Congress sets limits on what should be brought to fed court using private cause of action, but sometimes, case by case, consider to bring, anyways. Still want to respect congress so do case by case o Will letting one in open the floodgates for so many in similar position who are not technically supposed to be let in? It is necessarily raised o Grable example- to decide claim, have to decide the federal question to resolve the state law question. o only basis to argue that property is still his is if was served properly (federal question) o o o o this issue needs to be decided on to decide on entirety of it VS Merrell example- was not necessary could have used other things besides the per se of the federal law to show negligence. Can show negligence in other ways other way to argue: because it was the only allegation they brought up, have to look at fed question to decide the negligence for plaintiffs The federal issue is actually disputed o Almost always met o Are they arguing over this federal statute or is it just there to get them into fed court? o Grable- about if being served properly… that is a federal statute’s concern Challenging smj o If make direct attack on this and pers jur, cannot later also collaterally attack it based on these o If initially in fed, def wants it down to state, can try and dismiss or challenge jurisdiction- 12b1 o If removed to fed (originally filed in state), def can challenge through motion to remand to state court, 1447c Removal/remand o Instate defendant Defendant can’t remove under diversity if citizen, not just resident of the state that the state court is located in Citizenship does not matter if removing for federal question Rationale- purpose of diversity as basis for sbj is to protect from bias… already in home state theme of plaintiff supposed to be master, so limits how defendant can get out of it o if plaintiff removes, must be remanded because only defendant can remove o to remove: first ask if fsmj- then, diversity or fed question? o 1441a- district court has to embrace city where state court was o Adding a state law claim 1441c- Removal proper because has to sever the claims and remand the state one back o 1447c- instate- cant remove under diversity if citizen of state o Joining in removal- all parties have to join/consent to remove But if ny citizen, cant remove, so cant join to remove 1441b2 o 1446b2c- each def gets 30 days to remove If one loses chance and other still has chance, the other can join under the party who still has a chance o Cant join amounts if 2 different theories to get the same issue because will only win that amount even if win both o Cant add 2 diff defendants amounts together, either o Cant remand when start in fed court, so should use 12b to dismiss the case if starts in fed court o If happens under diversity originally and adds someone in same state as other party (court has to decide if added appropriately or to screw over) then have to remand back down As judge, balance equities, delay, prejudice, and ask why now adding neal- good reason, found out had to through discovery? Importance to case? Efficiency of combining this and a separate court where he is? o 1446ca2- defendant has to show that there is more than 75k at issue even though alleged only 70k Is she just alleging this to prevent from removing? So if in jur to permit more than what asking and if close to amount, defendant can prove that there can be more than 75k o All cases must be removed within 30 days of the service of the first document that indicates that the case is removable. o 8a1 allege relevant facts to meet smj how are fed courts established? o Need constitutional and created by congress for its creation and jurisdiction why federal court? Difference is huge o More varied and wider jury pool- consider when factual question o Judge has tenure, decides on proper, not politics- consider when legal question o Different procedural law about what introduced o There is twiqbal o Speed of dockets o Assigned judge who manages case entire way through DISCOVERY Parties provide and obtain information about their claims and defenses 2 stages to discover things 1st stage initial disclosure- 26a at or within 14 days after the parties’ 26f conference unless different time • both parties must disclose to each other • any discoverable materials • Witnesses, list of documents that • will use to support • claim • or defense nd 2 stage- request and response• parties send each other • interrogatory and document requests, • depose, • seek admissions from other side • ask for info, • other side responds w info Scope of discovery, 26b1 • nonprivileged matter • if privileged, don’t need to produce that information • is absolutely protected unless • waived by disclosing to someone else, it becomes no longer confidential • privileged protects the sources, not the content of the information • privileged relationship • attorney/client relationship elements • Confidential communication • between client and attorney • acting as such • for purpose of obtaining legal advice • upjohn defined relationship of attorney/client • if information is in the scope of the corporation's employee’s duties • and there is communication between them for legal advice and nothing else • procedure When assert privileged relationship or information, • need to claim the privilege, • give privilege log that explains the materials protecting • relevant to any party’s • • claim or defense • used to prove or disprove something that law says matters • or the claim relies on • united oil relevance, how used in challenging int and doc requests • proportional to the needs of the case • zubulake court balances the factors mentioned in 26b1 • importance of issues at stake in the action • amount in controversy • relative access to the information • resources available to parties • the importance of discover in resolving issues in the case • to find out whether the burden/expense of proposed discovery outweighs the likely benefit • if it does, it is not proportional • if it does not, it is proportional and is thus an appropriate request • information need not be admissible to be discoverable • hearsay not admissible, but can be discoverable- repeating what someone told you • policy it is not reliable • “did anyone tell you that they saw the accident” • Getting access to hearsay info may lead to info that can be admissible, but it itself does not need to be. Puts basic limitation on plaintiff • 26c, additional limits on discoverable information- • • • • • • • protective orders, allows otherwise discoverable information to be protected if party can say is necessary reasons for issuing protective orders • Private, • confidential, • trade secrets, • embarrassing, • harassing if has to produce. • Oppression • Undue burden or expense • annoyance Shield, coke, rivera- all info was discoverable but if disclosed, parties could be seriously harmed outside of context of lawsuit. Court can provide protection. Balance test if should provide the protective order • balance need for information by one side • against intrusion or harm that comes from having to produce. • Court decide if must be produced or protected Protection will allow- what mean by protected? • Can change the info sent, • reduce what want, • or try to accommodate the competing interest if possible. Procedure • 26b3a trial preparation materials not discoverable Requires tangible thing prepared in anticipation of litigation by party’s representative Hickman. • Includes • Tangible things/documents • Prepared in anticipation • Two definitions • If information prepared because of litigation • If information prepared primarily to assist in litigation (more narrow) • If it is for trial litigation, • Trial preparation materials only discoverable if the • Requesting party can show a substantive need for the information • And undue hardship to get the information from other sources • Sometimes considered • Diligence in getting the information from other sources • Of litigation • By or for another party or its representative (another party’s attorney, consultant, surety, etc) • Other tests for what counts as trial preparation • Some courts • Prepared for any litigation • Other courts • Had to have been prepared in the related litigation • Show that case a and b are related • Or trial preparation for the same party 26b3b mental impressions not discoverable (absolute protection) • Concerning litigation • If want this from of representative or attorney, it will be protected enforcing the production of discoverable information AND sanctions if do not abide • Washington state physicians • 26g • Discovery form of rule 11 • Objective like rule 11 • Procedure filing motion for sanctions on belief that violated 26g • requires reasonable inquiry under circumstances and warrant that discoverable first consistent by rules, • warranted by law or non-frivolous request to change that law • and requested for proper purpose and not to harass, delay, increase cost of lit, • and discovery not unreasonably burdensome given facts of case. • If violated • Must impose • Appropriate sanctions unless o To punish o Deter o Compensate o Lots of discretion to see what the sanction should be • Substantial justification for the action • Against attorney or party but not firm • 37 sanctions • procedure • 1st party files motion to • Compel production after they already • Conferred in good faith with the other side nd • 2 court fives the motion to compel • 3rd they fail to comply with that order • 4th court can impose just sanctions • There is a wide range • court can assume if someone tried to hide and now comes out, that is proven by evidence. • Can prohibit introduction of matters into evidence if not properly produced. • • • • • • Or can strike pleadings or other, can dismiss or default, or could contempt of court against party or attorney. For violating court order compelling discovery Against party and or order. Must grant attorney’s fees, expenses unless substantially justified to act this way Procedure: how does it come to the court’s attention? • Two different motions to have an order to compel or produce • the requesting party files a motion under 37 • when the responding party objects to a request • the responding party moves for a protective order under 26c • so asks court to determine what must or not be produced The Appellate review of discoverability motions is • abuse of discretion. • Gives substantial deference to trial in dealing with discovery issues ---------------------------------------------------------------------------------------------------------------------------o Discoverable- relevant, proportional, not provileged o Policy o Use early on to see if there are facts we agree on or likely wont be found, it should not be tried, or throw out case altogether o Increases chance of settlement, efficient o Most discovery disputes are at trial because it ends with a judgement that does not end the case, so cannot use appeal to appeal judge’s order on discovery, have to wait until the end of the case, but at that point, other things have transpired o Disclosure element o Required after pleading, both parties have to exchange this info with each other, there is no request for this o Certain info: witnesses and documents relevant to their claim/defense that will use in their case o Requests o Then, each side requests from each other any info relevant in providing or defending case, not limited to info that want to use, and other has to respond o If don’t want to answer question Assert/file one or more objections with legal basis Then, plaintiff has to file motion to compel court to make them respond But before, should try and compromise, see what’s wrong, between counsels Should not get judge involved o Can you appeal based on discovery? Only when case ended, discovery decision does not create final decision o Broader interpretation at discovery stage in consideration of relevancy o Burden o When plaintiff wants to introduce the evidence found in trial, has to prove relevant o During discovery, defendant has to prove that the request was not relevant o Procedure o 2 ways discovery issues come to court Responding party objects, says not discoverable, and does not produce. Requesting party files motion to compel to produce Protective order- responding party files. It is otherwise discoverable, but does not want to, so asks court for protection in this circumstance o Scope o 26b1 4 elements that make it generally discoverable Nonprivileged Privileges are state law created in the Rules of Evidence to protect relationships between these people o Necessary to these relationships to have honest conversations, we are in adversial system Attorney-client privilege o They are specific, and identify relationships spousal/attorney, etc o Document requests- if attorney sends to client, don’t have to give that memo, but can get the info that is in it o Has to be providing legal advice, not business advice, etc o Can waive by telling someone else because no longer confidential o Corporate context- who is the client for the attorney? If communication between attorney and employee that is needed to give legal advice and it concerns a matter in the scope of employment duties, and it is confidential then that person qualifies as client of the attorney only protecting the source and communication, but not the facts, so if ask in the right way, can get the info have to claim/assert privileges, say that wont be giving this use privilege logs to let other side know, and other side can use it to challenge privilege what if make mistake and give the privileged doc to the other side? Privilege no longer governs, but should notify, destroy it and not use it But can of worms still open Wavier problem- once out, it is no longer privileged All are explained in the rules of evidence Relevant Tendency to be of consequence Necessary to prove claim or defense Will make claim or defense more probable Will it prove an element of claim, establish causation? Has to limit to information about liver disease, not all injuries, because that is the argument o Need to knowledge and causation of what suffered from for liver disease, plaintiff suffered liver damage, question is if would know of this injury specifically, other injuries not brought up in claim` Failure to warn is not a limit o Goes to causation, maybe not knowledge o Causing any type of injury Proportional Requesting party needs to make sure requests are proportional vs defendant arguing it is not proportional need not be admissible in evidence to be discoverable hearsay not admissible, but can be discoverable- repeating what someone told you o not reliable “did anyone tell you that they saw the accident” Getting access to hearsay info may lead to info that can be admissible, but it itself does not need to be. Puts basic limitation on plaintiff o 26b2c, 26c, 26b3 o Limitations 26b2c limitations Unreasonable cumulative/duplicative Other sources more convenient/less burdensome Had opportunity to obtain info through other means 26c protective order provision Producing it would harm in some way One side thinks that needs it for case o Other side can ask for protective order (would be some harm to responding party if had to produce) Need good cause o Court has to weigh using cost-benefit balance How importance to needs of the requesting party and how damaging to producing party Can they compromise or keep the info confidential? enough to protect from harm? o 26b3 trial prep protects attorneys Work product Hickman Before case even filed, hired lawyer to interview witnesses, created o Signed witness statements- question answers, what saw, what happened Some states protect this, some don’t because not really work product, this is objective and what would be said on the stand o His notes during interview Below is explanation for protection Plaintiffs asked for his statements and also the notes- fyi, should have asked for these separately Had to produce the documents? o Without 26b3, would be discoverable? o 26b1 very relevant, proportional they are notes, no client privilege because not communication with client, but third party should be discoverable protective order? Does not count here typical ones protect interest of parties of the case this was about attorney’s interest produced in anticipation of litigation? o Yes o Court got around it and said need to protect this info o Policy behind protecting attorney products in the first place Practical- everyone takes notes, does that mean have to give everything? Get to look at attorney’s tactics, strategies, how they are looking at things Unfair, being able to work in private is important Could force the attorney to become a witness, there will be conflict of interest, they might decide not to represent well Sense of freeloading, could have gotten this info in other ways Why not freeloading? o Cant get the same testimonies as the 3 days after one o Parties in diff situations at diff points of time o Money/ability/resource imbalance How to get exception o It is not a privilege, which is absolutely protected o Show really need it, important info for the case o No other way to obtain o Hypo- circumstance to be a reason where court might have allowed production of signed witness statement If info is no longer available- witness died But if have freeloader problem in mind, probably would say lazy that didn’t talk to him before he died Consider timeline and when he died Some courts will consider the diligence of the partiesnot a standard, but it is a consideration of the rationale of the rule Mental impression 12b3 thoughts, notes on the interviews Trial prep o About anyone who is working for a party in anticipation of litigation o If meets definition, is protected unless meets 2 requirements Document/tangible thing Prepared in anticipation of litigation or trial Factors o Created by whom- attorney or other smaller party? o Timing of creation in relation to case- have to prove was in anticipation o Motivation for creation- 2 definitions open for grabs Prepared to assist in litigation Would not count, bc primary motivation is to see if should publish Prepared because of litigation- but-for Would count because trial potential was trigger Hypo- hire lawyer to make report about efficiency of going to trial If party wants it, will prove the harder one, to say not work product By party or their representative o Proportionality Finds the middle off too much, inefficient info and too little sneaky info o Challenging requests United oil Defendant said request was too broad, irrelevant to case because would not help prove or disprove facts needed for the case Same or similar claim o Limited to the injury in the claim, but things that would lead to knowledge of the causation to this injury would be allowed Same or similar products o Cant ask for anything that relates, needs to be relevant, cant be too broad Also had a temporal limit o Had been selling product for 50 years, cant reasonably give all that information up even if relevant because it is burdensome o Relates to proportionality o *but can balance this temporal limit with relevancy Rivera Sought protective order on deposition about their immigration status Court gave it to them, defendants filed motion for interrogatory appeal Plaintiff said shouldn’t have to respond because plaintiffs o Would be in danger personally o Policy reason of undoc immigrants not coming forward, shouldn’t chill meritorious claims Court said this info important for defendants for remedy, so at least don’t need it now given the harm, lets wait o Defendants said helpful now for settlement Court said efficiency of settlement does not outweigh harm Proof at trial could outweigh, though Zubulake Wanted emails that were now on backup tapes which were expensive to get access to Moved to compel them to sort through all that came up on a previous response Issue about who would pay, how to share or shift the cost? Usual rule is that responding team has to pay to respond to the request, and have to ask the court to shift Proportionality, 26b1 o Importance of the issues- gender discrimination at stake in the action Weighty but not unique, so many of these out there o Amount in controversy 1-19 mill How much spending for recovery compared to the award? Is it efficient? o Party’s relative access to relevant info The info was in control of the defendant Often goes against the responding party o Party’s resources Defendant has more, but she is asking for 19m, so she proportionally can pay for the 200k o Importance of discovery to the case itself and resolving the issue Its all about discrimination, these emails could help wither party with that question, it is highly relevant o Burden/expense outweighs its benefit? o sanctions o if don’t give the requested info, can be sanctioned, but sometimes it is worth it o 27 and 26g enforcing discovery rules trying to protect self interest Types of abuses Stonewalling- will interpret requests narrowly to assert objections that they can beyond what is reasonable Overloading- either side does, requests bunch of info so they waste resources o Or interpret broadly to give into that they cant find anything within the things that they send Evasive and misleading- lead other side to think producing what supposed to, but don’t actually give them what they want Goals of sanctioning Deter, punish, compensate to other side if had to spend a lot, and educate about what should be done Fisons Should not giving these 2 smoking guns be grounds for sanctions when literally asked for it, asked for things with the ingredient which made it “regarding,” and clear were trying to avoid it? 37- failure to make disclosure or not cooperate in discovery o Here, no motion to compel because don’t know what missing 26g similar to rule 11- objective test (intent does not matter) o Sanctions mandatory if without substantial justification o Sanctions standard: whatever is appropriate o Not against firm, could be attorney, could be party Sanctions Must do so unless substantial justification o Attempted justifications Said plaintiffs limited to specific files because what they wanted was in their wrong files We only have to produce what agree or ordered to produce This doesn’t seem right, just doesn’t make sense, opposite to purpose of discovery Discovery designed so that judge does not have to get involved, motion to compel pulls judge in, waste of time and money Said not specific enough Said just protecting clients' interest in this adversarial process But not if it requires you to violate the rules Amount is subjective o Appropriate- least severe to serve goals to punish- would be a higher amount, deter- lower amount, compensate and educate o But o Not so minimal that undermines purpose of discovery or that can benefit from wrongdoing o Factors- impact on case Resources wasted Intentional or negligent? Lawyers v party? o Judges upset because want to decide merits, discovery will effect merits, but upset because don’t like when wastes their time o RIGHT TO JURY/ADJUDICATION Right to jury trial 38 Procedure • • Automatically as preserved by the 7th amendment Or have to demand it • Timely • Has to be 14 days after last pleading directed to the issue • Can be in a pleading/original complaint • Can be the plaintiff or • defendant -Or request right to jury by putting in original complaint as the plaintiff or the defendant -challenge/prove that there is no right to jury- motion to strike? Constitutional basis: 7th amd- right to jury is preserved as of rules from 1791 • automatically applies to legal claims (compensable by money damages) • not equitable ones (nonmonetary remedies) • if question about if entitled to jury, if no adequate action for remedy under the law as interpreted today • look at two factors • whether the cause of action/claim is (STILL DO THIS ANALYSIS) • analogous to any one of that in 1791 • legal or torts, contracts, property equitable • trusts • and • whether the remedy sought is (TURNS ON THIS) • legal or • equitable equity court had jurisdiction when no adequate remedy available as matter of law, No juries. When Inadequate in law because what sought was not there in courts of law Claim party suing under not recognized procedural inadequacy Injunctions Specific performance Restitution Trusts in the state Back then, was one claim, def, etc How no adequate action for remedy under law interpreted today How determine if right to jury to hear? See if the underlying claims/rights are being infringed upon under the constitution as of 1791 First, analyze nature of claimSecond, analyze nature of remedy- the more -legal or important one, ALWAYS TURNS ON THIS -equitable? If claim was available in 1791, look at history to legal equitable see which it was Common law- torts, Equitable- trusts contracts, property IF THIS, CANNOT GET IF THIS, CAN GET JURY JURY If not in 1791 (not above), find analog Terry looked at the relationship between the parties, said find analog that mirrors the parties today. --Members suing union looked like beneficiaries suing their trustee because relationship similar. --thus, claim in terry was equitable but this is not done, does not answer question just yet Any statutory claim today that would not be back then: -look at what the congress intends either explicitly or implicitly --(focuses on how describe the remedy to be available --- if legal remedy, then anticipate jury, ---if equitable, then congress does not) monetary Restitution, injunction, non monetary, specific performance Right to jury for when there are new procedures today not available then? • Inadequate remedy at law • or is inadequacy from then corrected by our procedures courts? If claim was equitable back then because of procedural reasons that are no longer applicable today, ALLOW JURY o Claim joinder, theaters. • Dairy queen- sought an accounting. • Historically accounting went to equity, but now we allow for use of masters so jury can do accounting, so no longer reason for accounting to be equitable, so not equitable, is legal now, also look at remedy Right to jury for joined equitable and legal claims • get jury for legal claims, • court will resolve the other once jury done. • And judge will rely on the facts as found by the jury o If legal, get right to jury now. Ross about stock, used to be equitable, but today under 23, it is recognized as legal, so stockholders not barred from jury based on that • but instead still look at their claims and remedies seeking. • How decide Declatory judgements• Declaratory judgements themselves do not get juries, but • • look at the nature of the substantive claim. • but if make it that • plaintiff • suing defendant and determine the claim they would have had • • If legal with legal relief, right to jury. • If equitable with legal relief, right to jury • If equitable with equitable relief, no right to jury • If legal with equitable relief, no right ro jury jury can also try specific issue or element in case. • juries decide issues of fact • and judges decide questions of law. • So, if claim right to jury for an issue, show issue of fact. o Determine by Looking historically if juries tried these issues before. o If yes, it is a constitutional right. o But if there was no consistent treatment for juries and this issue, with no right to jury to decide issue, o then go to question of expertise of either trier which one by considering better decision by looking at expertise. Judges interpretive. Juries designed to determine credibility, community standards. Judicial control over verdict Judges practice power over juries through o summary judgement, o jmol o rjmol o new trial brought before trial Summary judgement 56 • court resolves claims • on the merits • without trial • Procedure Any time up until 30 days after close of all discovery. • Moving party• show no genuine dispute as to material fact, moving party entitled to judgement as matter of law. • Genuine dispute• cites evidence to say • it does not establish the absence or presence of a genuine dispute or • party cannot produce admissible evidence to support the fact • • Compare direct and inferential evidence, not just conclusory information. • Court must draw all reasonable inferences in favor of the non moving party Must take burden of persuasion into account. Anderson. • • Initial burden of production. • If party with this, • must intro admissible evidence • and establish absence of material dispute. • party without burden, • can negate the issue, • show no genuine dispute • and negate the element or point to other sides evidence • and say insufficient admissible evidence to support non moving partys case. If burden met under 56, burden moves to non moving, • they produce evidence to support their side of story. • Any of evidence produced in sjm must be admissible in court • Judge may not • assess credibility or • weigh evidence • unless evidence on record that blatantly contradicts one party’s evidence- cobolt, scott. Material fact defined: • fact that case will turn on • Appellate review standard is de novo. Reviews summary judgement questions de novo because matter of law, person entitled to it, pure legal issues. Post trial Judgement as matter of law 50 • Procedure • can file after trial has begin • after the non-moving party has been heard and • • • before jury submission • If file jmol correctly, • moving party can file rjmol • if jmol is denied before it goes to jury has to include • • the judgement sought and • the law and facts that entitle the movant to the judgement Standard no legally sufficient evidentiary basis for a reasonable jury to find for the non moving party. • Lavender, reed • Note: standard identical to summary judgement. • Direct • Judge must accept all evidence favoring non moving party unless blatantly contradicted, cannot weigh nor assess the credibility • Circumstantial evidence • Can inferences reasonably be drawn? • Need enough evidence to draw reasonable inferences Renewed judgement as matter of law • Renew jmol within 28 days after jury returns their verdict/entry of judgement • Appellate standard for review de novo. If party appeals on denial of these, will do de novo review New trial 59, dadurian • Procedure- motion 28 days after judgement returned. • Court can grant new trial sua sponte- when want. • If it is the party moving, • have to combine with rjmol if plan to bring both, • trial judge has to decide both at same time. • If give new trial, could be conditional based on decision on jmol. • Determine if new trial should be granted if the judgement is later vacated or reversed o Court has to state reasons for conditionally granting or denying the motion for a new trial • Standard• court may grant for any reason where had been granted before by law. • verdict against clear weight of the evidence, seriously erroneous • the damages are excessive • the trial was unfair or • new evidence within 28 days • prejudicial error occurred • Flawed errors, misconduct, flawed procedures, new evidence within 28 days o Or flawed verdict. Verdict itself flawed. • In new trial, Court may consider o character, o complexity, o credibility of evidence, may be weighed against other evidence. If court thinks that jury decided correctly for liability but Awarded • Excessive verdicts- shocks the conscious • Remittitur- grant new trial unless party accepts lower standard. • Here, appellate review is abuse of discretion or clearly erroneous. • Additur is when the amount is too small, prejudice or mistake influenced it • Unconstitutional for new trial so not in federal courts • ERIE/REA/RDA Federal court in diversity case must apply state substantive law (defines rights of parties) and federal procedural law (governs manner and means of enforcing those rights) st 1 question• is there a federal law • or frcp • on point • that governs or controls state law issue, • define what the issue is • look at what the state law provides, try and define that issue • purpose, intent of law? • The approach the law takes • Gasperini, different approaches and conclusions to what the law was talking about • Then identify the frcp or statute that might govern • How broad or narrow to interpret it to find if it governs the issue that was defined above • Example walker, ragan- rule 3 defines when case commences at time of filing, court said but this rule didn’t govern this for tolling of statute of limitations o If this is issue of state law, then this doesn’t govern it • If there is a federal law or frcp the governs or controls the state law issue • DO REA analysis • Is the thing valid? • Yes, apply it • Valid test • Constitutional? • Test for constitutional • Is it arguably procedural? Governs the manner and means of enforcing right, useful for manner and means of enforcing right. Useful for admin purpose, promote our goals of efficiency and fairness, finality, notice. • • • • Note, Any frcp, statute out of 28 will be arguably procedural If constitutional and statute, apply If const and frcp, see if valid under • 2 step • 1. is it a rule of procedure? Already above. If arguably procedural, then yes • 2. not more than incidentally abridging or modify substantive right. Argue that even if procedural, is not abridging substantive right in that even if it might, it is accidentally doing so and is still valid and will apply the federal rule or statute If there is NOT a federal law or frcp that governs or controls the state law issue Do RDA analysis RDA focuses on difference in applying state and federal law in same state to see if violates principles If so, will apply state law Steps 1. is state law bound up in substantive right and obligation of parties. -Is law substantive one that effects element of claim as it did in Erie. • If yes, apply state law. • If no, go to twin aims of erie • Twin aims of erie if either violated, apply state law • If twin aims not violated, apply federal law because no need to add state law • Will having diff laws in state and fed court • either promote forum shopping • Forum shopping analysis• how important is issue to parties, • how diff are 2 laws between the courts • in that incentivize picking one court to other • or result in the inequal admin of the courts? • Modified outcome determinative test• will a difference between laws substantially effect outcome of case- analyze prospectively. • Note there is always difference in two laws, so don’t presume that diff leads to the twin aims. • Still consider the 2 questions. If either met, it violates twin aims, we would want to promote state law there. • • If no, fed governs • If yes, next question • However, next question If there is an overriding fed interest that goes to essential characteristic of court, that outweighs twin aims • Essential characteristics Court wanting to distribute decision between judge and jury, trial and app, or defined scope of judgements. • If think essential, apply fed law. • If not, apply state law Claim and issue preclusion Prevents relitigation of claims and issues after judgement Basis Rooted in • full faith and credit clause• federalism/what preclusion doctrine governs? • second case has to give same preclusive effect to judgment as first court did, so use preclusion doctrine of first court system (federal or state) unless • First court was fed court sitting in diversity, • Then use federal law • Which will incorporate state forum doctrine • So use law of state where court sits Claim preclusion Prevents relitigation of claims that were or could have been litigated in prior actions Cant assert the same cause of action in a later suit • 1st element • Parties in case 2 must be • The same parties • Or parties in privity • Substantial, legal relationship, or statute that defines it • Guardian, ward, trustee, beneficiary, class representation, class • If a party is represented by a non party • Will be bound • Non party to the case might also be bound • Through contract • Had active control of case in case 1 when was not a party • In the same configuration • Brought by same person against the other as in case 1 • As those in case 1 • Procedure • Who can preclude a party? • Person who was a claimant in case 1 • 2nd element • • • had to be same claim. • Diff tests. Carter. • Fed- fed doctrine• same transaction? • Can interpret transaction narrowly or broadly • Wrongful acts• defendant’s wrongful act or Plaintiff’s Primary rights • • The rights that were violated rd 3 element • Judgement must be • Valid from case 1• court had jurisdiction over claim. Final• • same definition as when can go ahead and appeal- when it is completely over • If case 1 is on appeal when 2 is filed and pending, still deemed final for doctrines • On merits• all judgement for plaintiffs are on merits. • Dismissals against plaintiff, look at rule 41b. are on merits • For plaintiff failing to prosecute • Comply with rules, court order • Defendant moving to dismiss the claim • And any other dismissal • Except (not on merits) • Lack of jurisdiction • Improper venue • Failure to join a party 19 • Practical explanation for 41b, if not dismissed early on on procedural grounds, plaintiff had opportunity to get to merits of case, then deemed on merits unless court says otherwise • Dismiss without prejudice not on merits • If can fix it, fix it • Dismiss with prejudice on merits • If cant fix it, it is done • Default unless stated otherwise Exceptions • If agreement to be not bound by parties • First court reserved right to bring second case • Claimant unable to assert in prior case • Smj • Joinder limits • It would be inconsistent with fair and equitable implementation of statutory or constitutional scheme or sense of scheme that should permit splitting of claim • There was a continuing wrong- trespass claim not ripe at time of the first judgement • Extraordinary circumstance • Not aware of injury when brought case 1 • Note Only bring these exceptions if these are suggested, see if applies Issue preclusion Prohibits the relitigation of specific issues of fact or law that have been litigated and determined in prior actions More narrow than claim preclusion (can get issue thrown out versus case) • 1st element: • identical issue of law or fact as in the first case • 2nd- issue litigated. • If element of claim, • went to trial, litigated. • If element of defense, • have to know if raised as defense below • and was litigated rd • 3 issue had to have been decided, • know how trier decided. • Problems arise when multiple grounds for decision and general from jury • Might not know their reasoning or • Decision on the specifics th- issue necessary to judgement. 4 • • Rehabs. • Test by holding everything same, alter result on issue in first case, • see if judgement on case changed is decision on issue changed. • If so, necessary to judgement th • 5 judgement was valid, final, on merits • Valid from case 1• court had jurisdiction over claim. • Final• same definition as when can go ahead and appeal- when it is completely over • If case 1 is on appeal when 2 is filed and pending, still deemed final for doctrines • On merits• all judgement for plaintiffs are on merits. • Dismissals against plaintiff, look at rule 41b. are on merits For plaintiff failing to prosecute Comply with rules, court order Defendant moving to dismiss the claim And any other dismissal o Except (not on merits) Lack of jurisdiction Improper venue Failure to join a party 19 • Practical explanation for 41b, if not dismissed early on on procedural grounds, plaintiff had opportunity to get to merits of case, then deemed on merits unless court says otherwise • Dismiss without prejudice not on merits If can fix it, fix it • Dismiss with prejudice on merits If cant fix it, it is done Default unless stated otherwise th • 6 parties- in fed court, no longer requirement of mutuality (had to have been party in the first case to bring it up) • With respect to parties being bound in case 2, must have been parties or privity in case 2. • But those wanting to assert issue preclusion, anyone can • Non party/mutual defensive use of issue preclusion always allowed. • No exceptions to that use. • Non mutual offensive issue preclusion- parklane. • 4 exceptions where should not apply- use discretion • Wait and see plaintiff • Issues where had no incentive to fully litigate in case 1 • Inconsistent prior judgements or • Def in case 2 has procedural opportunity not available in first suit to have sub effect on outcome and det of issue • General exceptions to issue preclusion• did party have opportunity for appellate review in case 1. • If not, not bound • Interim change in law, issue is one of law, • don’t bind Verify if burden of proof works. • • Procedural opportunities in case 2 not in case 1 that might preclude issue preclusion • Not having incentive to vigilant litigation in case 1, should not bind in case 2 • • • Joinder Counterclaim • Claim by a defendant against a plaintiff Crossclaim • Claim by one defendant against another or • Claim by one plaintiff against another Third party claim • Claim for indemnification • By defending party • Against a third party Policy fairness, accuracy, efficiency. • Want to avoid potential prejudice to multiple parties in case and/or creating complicated cases to confuse jury and other issues • 18a- claim • if party has claim against another, • they may join any and all other claims have against that party. • No limitations once have claim against party, can join any and all against other party 20 parties permissive joinder of plaintiffs or def, same thing. • • Requires 2 things • Claims by/against same plaintiffs/defendants • must arise out of same or series of transactions • transaction- narrow or broadly defined • consider • function of plaintiff’s injury or • defendant’s conduct • overlap of evidence • logical relationship of claim • Marsh and statute of limitations, rule 15c • and • Common question of law or fact with respect to the multiple claims Defendants• when can def join claims • can join 2 types of claims • counterclaims under 13 • 13a- compulsory. • Must bring compulsory counterclaims • against plaintiff • or lose opportunity to file in separate case. • claims Against plaintiff • that arise out of same transaction • subject matter of plaintiffs claim against them • 13b- permissive• all other claims • claims not arising out of same transaction, • so defendant may can join any and all against plaintiff. • • • • • Crossclaims. Plaintiffs can too against other plaintiffs, 13g • Must arise same trans • That is subject matter of • original claim in case • or counter claim Defendant join parties 13h • def may add party • • • • with respect to their counterclaim or crossclaim if that additional party would meet rule 20. Claim against new 3rd party would arise from • Same transaction or series as their counterclaim or crossclaim • and involve common question of law and fact with respect to defendant’s cross claim or counterclaim • If def does not have cc or cc, • only other way to add party is impleader/14. • Procedure Time- add 14 days after service of answer. • Longer, need leave of court to add impleader under 14 Impleader claim 14 needs to be derivative claim • Contribution or indemnification claim • Third party defendant responsible to defendant to offset whatever liability defendant is liable for to the plaintiff • Marckvicka • Once third party defendant is in, • Look to 14 • Can use 13 against original defendant • Can bring claims against plaintiff if they • Arise out of the same transaction as • The original claim Plaintiff can assert against 3rd party if arises from the same transaction of original • claim. • 14- allows for same set of rules for 3rd party as any other party 42- judge discretion for managing trial 20b- allows judge to separate parties for trial. • Policy Convenience, avoid prejudice, efficiency 42b also allows judge to separate claims for trial, for conv, prej, efficiency 42a- judge can consolidate cases or consolidate claims and parties for trial purposes as long as common question of law or fact Challenging joinder- rule 21. • Motion to sever, • Not dismiss. • If improper joinder, misjoinder of claims or parties, • motion to sever claim or party On exam- do complete anal of all relevant elements, address each element sep. policy- bring in to use in conclusion. Same trans? 2 good competing if does or no, use policy to see which arg would best promote our policy goals Independent od anal if arises. To see which better, use issues of policy Need a conclusion?