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I. Sources of Law
1. U.S. Constitution
• Article III, §§ 1 1 supreme court
Fed court Judges serve for life.
Congress decides if there are lower federal courts(besides supreme court..made by constitution)
• Article III, §§ 2
Judicial power covers all cases
1) Law and Equity from the Constitution, US laws and treaties (Federal Questions)
2) To all cases affecting Ambassadors, public ministers and consuls (foreign ministries)
3) All cases of admiralty/maritime jurisdiction (admiralty)
4a) Controversies US is a party of
4b) Controversies between two or more states
4c) Between a state and citizens of another state
4d) Between citizens of different states (diversity jurisdiction)
4e) Between citizens of the same state claiming lands under grants of different states
4f)) Between a state or the citizens thereof and foreign states or foreign citizens
2. U.S. Code
 28 U.S.C. § 1331 Federal Question Cases arising from constitution, laws, and
treaties

28 U.S.C. § 1332(a) Diversity (amount in controversy is OVER $75,000 and
citizenship of the parties(plaintiffs and defendants) is from different
states(domicile)
3. Federal Rules of Civil Procedure
• FRCP 12(b) Party(defendant) may assert the following defenses by motion
1)lack of subject matter jurisdiction
2)lack of personal jurisdiction
3)improper venue
4)Insufficient process
5)insufficient service of process
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6) failure to state a claim upon which relief can be granted
7)Failure to join a party under rule 19
II. Federal Subject-Matter Jurisdiction
A. Article III and the Judicial Power of the United States • U.S. Constitution, Art. III, §§ 1, 2
Federal courts have limited subject matter jurisdiction
Congress decides how many justices on the supreme court
Questions of Federal law can be heard in state courts but can choose federal courts sec
1331
B. Original Jurisdiction
1. “Diversity” Jurisdiction

28 U.S.C. § 1332 (c)(1) Corporation citizenship decided by state by which it has been
incorporated and the state where it has its principal place of business.
Party who is seeking federal diversity jurisdiction has the burden to establish the diversity of
citizenship.
Rule of complete diversity:
Mas v. Perry sets the standard for state citizenship formula
1) US citizen
2) Domicile in a state
DOMICILE- true fixed and permanent home and principal establishment and to which he
has the intention of returning whenever he is absent.
Change of domicile: 1) taking up residence in a different domicile
2) The intention to remain
3) Residence(physical presence must be there)
Citizenship of the parties is locked in the day the complaint is filed.
Stateless citizens: lacking a state(due to living overseas etc) the stateless person can not
file a claim or have a claim filed against them in federal court on the basis of
diversity..can file in state court.
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When claim not a fed court claim(state court claim with diversity)..fed court will use state
law.
Citizenship for a 3rd party(defendant against a 3rd party) do not count for diversity.
Fed subject matter jurisdiction
1) Constitution Art iii(congress authority to hear cases)
2) Federal Statute(law)
If two plaintiffs complaints are tied together and one does not have complete diversity both
claims are dismissed from federal court.


28 U.S.C. § 1359 No fed Subject matter jurisdiction if any party has been improperly
joined to invoke jurisdiction(diversity jurisdiction) Can’t game the system.
Americold Realty Trust v. ConAgra Foods, Inc.
Was a realty trust(not a corporation) because not a corporation(and no statute on
noncorporations) therefore to determine diversity and citizenship of the realty
trust(Amerigold) had to look at place of business and ALL the members state
citizenship.(no matter how big the membership was)
Noncorporations citizenship decided by place of business and citizenship of all members.

Hertz Corp. v. Friend (court case with ca employees suing under ca employment law
said could have case in CA because majority/proportion of Hertz’s business was in
CA. court said proportion if business not correct) Defined principal place of business
standard: is NERVE CENTER (where high level officers direct and control the day to
day operations of the company) normally the Headquarters.
Corporations citizenship is place incorporated and Nervecenter (HQ)
Sua Sponte: court does on its own…court has an obligation to ensure it has subject matter and
personal matter jurisdiction.
 28 U.S.C. § 1332(a) Diversity (amount in controversy is OVER $75,000 and
citizenship of the parties(plaintiffs and defendants) is from different
states(domicile)
Amount in controversy:
Separate Plaintiffs can not Aggregate combine separate complaint amounts to reach the
amount in controversy threshold of above $75,000.--Rule 18 Joinder rule: allows plaintiffs
to combine all complaints together against 1 defendant no matter how unrelated.
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Same plaintiff to same defendant sperate claims can be aggregated(whether they are
related claims or unrelated claims. –Rule 20- several plaintiffs allowed to join in asserting
claims against 1 defendant for the same occurrence cannot aggregate damages to meet
diversity threshold.
Monetary value on injunctions: most put a value on the injunction relief…from the
perspective of the person applying for the injunction.
Is amount claimed in good faith.
1) Is this sort of recovery permitted
2) Is this claim made in good faith
3) Punitive damages greater than 4 to 1(compared to compensatory damages) or 9 to 1
may violate due process.
2. “Arising Under” (or “Federal Question”) Jurisdiction
28 U.S.C. § 1331 The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.
Louisville & Nashville R.R. v Motley The Motleys had received life train passes as
settlement for a train accident and then one year train company didn’t give them to them
because the federal law changed and said that free railroad passes were not allowed.
Original complaint of breach of contract was not a federal question even though the defense
of the defendants would be they had to breach the contract due to the federal law changing.
MOTTLEY: WELL PLEADED COMPLAINT RULE: complaint must contain the federal
question(not the anticipated answer to complaint being the federal question).
(Well pleaded complaint rule) This means that the plaintiff's initial complaint must
contain the references to the federal question and the federal issue evoked. The
federal question and issue cannot arise in an anticipated defense, it must be presented
from the initial complaint. Properly pleaded complaint states the essentials of the
plaintiffs claim it doesn’t anticipate the defenses claims.
Why does supreme court grant writ of certiori in certain cases: disagreement regarding whats
happening in the lower courts about the same law. In order to clarify the law/rule so all the
federal cases are decided in the same manner.
C. Supplemental Jurisdiction
United Mine Workers v Gibbs Pendent Jurisdiction(led to supplemental Jurisdiction) Coal mine
closed and laid off all its workers from one union and then later in the year coal mine to reopen
and hires different union. Union violently assaulted people and then nonviolent picket line.
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Gibbs(supervisor of coal mine) brought a complaint with a Fed Law and a complaint with state
law. At the end of the trial fed claim dismissed but fed court gave a verdict on the state claim.
1331 (Pendent) says can cover all cases that arise from a common nucleus of facts even if not all
claims are federal.
Pendent Jurisdiction only has to do with 1331 cases (can not use for 1332)
Ancillary Jurisdiction: allows a federal court to hear a claim that would normally be outside
of its subject-matter jurisdiction if it is substantially related to a second claim that is within the
court's jurisdiction
--Giving Fed court jurisdiction over claims brought by defendant Counterclaim, cross claim and
3rd party claims. ONLY FOR DEFENDANTS
Reasons Court might say no to pendent jurisdiction if
1) State law claim PREDOMINATES over fed law(substantial hegemony)
2) Likelihood of Jury confusion
3) Fed Law claim dismissal(in beginning of trial or before complaint.
Prior to 1367: Zahn case: held every member of a class action needs to individually have
minimum amount of they can’t be in the claim(each needs 75,000 amount on controversy) NOT
ANYMORE
Clark case:m2 plaintiffs can’t sue same defendant if both don’t meet the amount (can’t use
ancillary because not defendants(NOT ANYMORE)
Section 1367: Supplemental Jurisdiction takes over for pendent and ancillary. Statute shall
include claims that involve joinder or intervention of. Additional parties.
1)Class actions are ok if 1 plaintiff meets the threshold (Note class actions only need
diversity of the original plaintiff)
2) 2 plaintiffs can sue same defendant in fed court over same issue if ONE meets the
subject matter jurisdiction
1367b if it’s a diversity claim fed court has no jurisidiction over plaintiffs claim by
Joinder under rule 14,19,20,24
Rule 13: counterclaim/crossclaim
Rule14 third party claim
Rule 19 required joinder
Rule 20 permissive joinder
Rule 23 class action
Rule 24 intervention
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1367a Federal district courts have to have Original jurisdiction in order to have supplemental
jurisdiction over ALL OTHER claims(that don’t fall under federal claims) that are SO
RELATED TO CLAIMS IN THE ACTION within such original jurisdiction(derive from a
common nucleous of operative facts) such supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional parties.
1367b (DIVERSITY CLAIMS) District court not have supplemental jurisdiction (unofficial 1)
over claims by plaintiffs against persons(defendents) made parties under rule 14,19,20 or
24.(only original defendants).
(Unofficial 2) not have supplemental over claims by persons proposed to be joined as plaintiffs
under rule 19 of such rules or seeking to intervene as plaintiffs under rule 24.
NO DIVERSITY of additional defendants No federal jurisdiction(incomplete diversity+ no fed
diversity)
Only Plaintiff claims affect by 1367b.
1367c federal district court may decline to exercise supplemental jurisdiction when:
1)
2)
3)
4)
Claims raises from a novel or complex issue of state law.
State claim importance is substantially over the fed claim they have jurisdiction
All federal claims have been dismissed
Can be other reasons for declining jurisdiction in exceptional circumstances).
Steps to analyze A supplemental jurisdiction problem:
1st) Fed Question (1331) or Diversity (1332)…over 75,000 and dif state citizenship ORIGINAL
JURISDICTION over First claim
2nd) Additional claims is there supplemental Jurisdiction
a)1367…fed court have original jurisdiction over first claim
b) 1367a does the additional claim come from the “common nucleous of fact)
c) If diversity check no fed jurisidcition if defendant a third party,required joinder,
permissive joinder or intervention or claims over plaintiffs under required joinder or plaintiff
under intervene.
d) check if 1367 c applies reasons for decline
1) Claims raises from a novel or complex issue of state law.
2) State claim importance is substantially over the fed claim they have jurisdiction
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3) All federal claims have been dismissed
4) Can be other reasons for declining jurisdiction in exceptional circumstances).
FRCP
COUNTERCLAIMS (Rule 13)
Claim that defendant makes against plaintiff; counterclaim can basically be anything
 13a Compulsory Counterclaim  any claim arising out of the transaction or occurrence that is the subject
matter of the opposing party’s claim
o If def brings counterclaim, plaintiff is required to bring compulsory counterclaims of his own, if
they are transactionally related
o If either party fails to assert a compulsory counterclaim, he waives his right to assert it later
 13b Permissive Counterclaim  everything else!
o A pleading may state as a counterclaim any claim against an opposing party not arising out of the
transaction or occurrence that is the subject matter of the opposing party’s claim
 New parties may be brought into suit as part of a counterclaim provided there is
jurisdiction
CROSS-CLAIMS (Rule 13g)
Co-parties can cross-claim, as long as they are in the same tier
 Cross-claims must arise out of the transaction or occurrence that is the subject matter of the original action
or a counterclaim therein
o Tolerate broad counterclaims because they are about the same fight—but cross-claims are limited
because don’t want the cross-claims to disrupt the original lawsuit
 Cross-claims are thus completely permissive and carry a T&O requirement
o However, once get cross-claim under 13g, then obliged by 12a compulsory counterclaim to file
any compulsory counterclaims against cross-claiming party
THIRD PARTY CLAIMS (Rule 14a)
Called impleader in many jurisdictions  action for contribution, indemnity, etc
 Rule doesn’t specifically say T&O, but all 3rd party claims must emanate from the underlying claim 
logical relationship, series of T&Os, etc
 Unlike counterclaim and cross-claim, in effect brings a new action
o Bringing in a new party raises all traditional in personam jd issues
o If plaintiff can’t get supplemental jd, then has to take claim against 3rd party to state court due to
§1367(b)
 Owen v. Kroger: If you wouldn’t allow plaintiff to sue Owen directly, shouldn’t allow
her to do that indirectly by virtue of the 3 rd party defense practice procedure
COMPULSORY JOINDER OF PARTIES (Rule 19)
Three questions to think about for exam 
1. Is there someone out there who should be joined?
a. Rule 19a  person shall be joined as a party if:
i. (19a1) outsider’s absence prevents granting complete relief to those already involved
ii. (19a2) outsider will be prejudiced, his rights will be impaired or impeded, if he isn’t
joined
2. Can the court join him?
a. Party may be joined under 19a only if court can serve him/get personal jd over him, and bringing
him in won’t destroy diversity (subject matter jd)
PERMISSIVE JOINDER OF PARTIES (Rule 20)
Two sentences for exam  The standard for permissive joinder of parties is common question and transaction
or occurrence. Since the complaint alleges that all of the defendants were involved in the conspiracy, there is
a common question of conspiracy and a single transaction—the formation of the conspiracy.
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

Common standard for joining parties:
o (1) you can join anyone whose claims arise out of the same transaction or occurrence
o (2) you can join them only if there is a common question tying all parties together
Rule 20 = transaction or occurrence + common question
o Virtually guaranteed that if there is T&O, there will also be CQ
Works for joinder of plaintiffs as well as joinder of defendants
CLASS ACTIONS (Rule 23)
 Designed for efficiency and economy, to avoid confusion of too many parties in court
INTERVENTION (Rule 24)
Outsider says he belongs in the case because his interest is not being protected
 Always a concern that the outsider will muck it up for those already involved
 Division between permissive intervention and invention as a right 
o Rule 24a: applicant has a right to intervene when either
 US statute confers an unconditional right to intervene, or
 Disposition of action may impair or impede applicant’s ability to protect his own interest
 Must demonstrate that interest is not adequately represented by existing parties
 This rule is the other side of Rule 19a—persons may be joined when feasible
19a is both a party question and a jurisdiction question (subject matter and personal
Owen Equipment & Erection Co. V. Kroger
Kroger wrongful death against OPPD was able to bring the case in fed court due to diversity .
Oppd added Kroger(who owned the crane). Kroger then also filed a claim against them but this
made the whole claim have to be denied because Owen was in Iowa so therefore no diversity.
Court tried to use ancilliary jurisdiction(because the statute of limitations had expired) but that is
only for a claim by a defendant. . If Owen could not file a complaint against owen in the initial
complaint Kroger can not add Owen later.
Exxon Mobil v. Allapattah Inc, Rosario Ortega v. Star-Kist Foods, Inc.
Girl cut hand on can and her parents also filed separate claims but did not met the amount in
controversy amount. Sunkist asked for summary judgment. Court decided when all other
elemenets of jurisdiction are present and at least ONE named plaintiff satisifies the mount in
controversy requirement a court may exercise supplemental jurisdiction over claims of other
plaintiffs in the same case or controversy.
III. Removal from State Court to Federal Court

1441a (removal) Federal court has to have Original Jurisdiction
1441b go to the federal district responsible for the place where the original claim was
filed.
1441b(2) If the defendants are citizens of the state the case is filed defendants CANNOT
apply for removal to federal court due to DIVERSITY (1332)..the reason is defendants
would not be biased against in their home state.
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1441?? All defendants who are joined must agree to remove.
When File an Notice of removal—the action removes from state to federal—federal court
than decides if has jurisdiction

28 U.S.C. § 1446(a), (b), (c)
1446Notice of removal needs to be filed within 30 days after the RECEIPT of a copy of
the complaint.(must be decided immediately)
1446b3 If the case becomes removable(a claim dropped etc) the 30 days to remove start
once notification that lets a person know they could now file to remove
1446c1 removal can not happen after 1 year even if 1446b3 all of a sudden becomes
available(if if something happens to make it plausible)NOTE: unless plaintiff acted in
BAD FAITH to clock defendant from getting to court.
Defects in removal:
1)
2)
3)
4)
5)
6)
Lack of federal subject matter jurisdiction
Defendant issued(filed claim) in state of defendants citizenship
Defendant removes after 1 year
Notice of removal filed in excess of 30 days
Non-consenting defendant(when multiple defendants)
Defendant files notice of removal in the wrong district.
Things that cause a removal to fail(remand back to state)
1) No original jurisdiction(ex both plaintiff and defendant have the same state citizenship
and not a fed question)
2) Wrong US district
3) Defendant removes from state of citizenship(in 1332 action)..not allowed because of
diversity
4) Defendant doesn’t consent for removal when multiple defendants
5) Defendant files after 30 days for removal
6) Defendant removes after 1 year in a 1332 action.
Motion to remand (1447):
Plaintiff has 30 days after motion for removal granted to file motion for remand. If doesn’t than
it stays in federal court EVEN if a defect exists
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NOTE SUBJECT MATTER jurisdiction has no 30 day timeline to file remand.
IV.
Personal Jurisdiction: The Traditional Framework
Pennoyer v. Neff 1877 Pennoyer bought land from Mitchell. Mitchell had bought the land as
part of a judgment. Neff owed him money for law services provided but had not paid and
disappeared. He filed in court and put an ad in the newspaper but Neff was a no show so he was
granted a default judgement. They then discovered that Neff had land and he gave the judgment
to the sheriff to seize his land in a quasi in rem way. He then bought the property in the sale and
sold it to Pennoyer. Then Neff returned and wanted his land back. It was decided the court had
no personal jurisdiction because they would have had to have seized the land first to have had a
different way to have personal jurisdiction(service in person, domicile in a state or quasi in rem
but property had to be taken and newspaper add put odd BEFORE verdict. Rule: prevents courts
from issuing judgements over people they have no personal jurisdiction
State always has jurisdiction to make judgments about a persons status..marriage, divorce even
when 1 party no personal jurisdictionthrough process of service.
Phases of a civil action:
1. Pleadings: documents filed with the court that spell out the
complaint and defenses.
Asserting claims: complaints(filed by plaintiff),
counterclaim(filed by defendant), cross claim(asserted against 1
coparty vs 1 coparty..defendant side or plaintiff side), third party
claim(impleader bringing a new party in)
Asserting defenses: answer(response)

Service of process:
1) Copy of complaint etc
2) Summons: court order instructing to respond…if no
response court will hold judgment against you
3) Service: delivery of the documents in PERSON
2. Discovery: process the parties get information from each other
a. Request for documents
b. Deposition_witness is put under oath and court reporter makes a transcript
of an interview
c. Interrogatories: written questions for the other party to answer
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3. Summary Judgment stage: court evaluates at this time if go to trial
(court might render judgment without going through trial process)
some cases get dismissed because plaintiff cannot win.
4. Trial: ends in verdict(judgment)
5. Appeal
1441: removal of civil actions (state court to federal court)…for 1332 actions the amount in
controversy can be a problem because the state does not allow or require damages..30 day clock
to remove to federal court does not start until you receive citizenship and damages amount(if
1332)
1446:process for removal (needs to be filed 30 days after service) or after knew had subject
matter jurisdiction
--court will make a finding as to amount in controversy if not state in the initial complaint
1447: procedure after removal..motion to remand for anything EXCEPT subject matter
jurisdiction must be submitted by 30 days after removal to fed court(subject matter jurisdiction
violations can be remanded at anytime.
--if defendant wishes to join additional defendants that would destroy subject matter jurisdiction
Judge may deny or join and then remand.
NOTE: court will only AUTOMATICALLY REMAND /reject removal to federal court for lack
of subject matter jurisdiction.
--even if motion to remand is late or has another defect it will stay in federal court UNLESS the
plaintiff files for remand within 30 days.
Once a federal law claim (1331) is added to a complaint. Now federal subject matter jurisdiction
could be premised on 1331 so not an action by diversity (1332)…only 1332 diversity that has the
1 yr clock.
1331 brings all complaints to federal court(even if 1332) if asked for removal.
30 day clock still applies to 1331 removals to federal court.
Structure of the complaint at the beginning will stay the same(for removal purposes) unless the
PLAINTIFF VOLUNTARLY takes an action to change it(settles with a party etc, court
dimissing a complaint does not change the structure).
Subject Matter Jurisdiction: Federal vs. State court
Cannot be waived..either have subject matter jurisdiction through 1331(federal ques) or
1332(diversity) or dismissed from federal court.
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Has to do with federal jurisdiction(can always take to state court with a few exceptions of the
federal court having exclusive jurisdiction)
Personal Jurisdiction: Can be waived as a defendant if no contest then have waived it…just by
showing up. Is about which state or states have jurisdiction. Sometimes have a choice between
states helps decide which states can file a complaint in.
V.
Service of Process

The Service Requirements of Rule 4
Rule 4 Summons and Service
4(a): what a summons has to have
4(c),how summons must be served with complaint and by 18 or over or US marshall or
appointed person
4(d),Waiving of service. Defendant always has the option of waiving service if defendant
refuses to waive without good cause(and probably isn’t any) they will have to pay for
expenses to get it to them and the attorney fees of the plaintiffs lawyer for working the
service.
--if waive you have 60 days to answer complaint(90 days if outside US) therefore have extra
time to answer normally only 21 days.
IMPORTANT: waiving service does NOT waive any objection to personal jurisdiction or
venue.
4(e),how to serve someone in the US…follow state rules…follow state rules where the
district court is or where service is made.
4(f), how to serve someone internationally any internationally agreed means of service that
is reasnobly calculated to give notice
4(g), Minor follow state law
4(h) serving a corporation
4(k) Limits of effective service serving a summons establishes personel jurisdiction over a
defendant if the defendant was subject to the jurisdiction of a state court where the federal
district is.
VI.

Due Process and the Requirement of Notice
Requirement of Notice :from Mullane v. Central Hanover Bank and Trust notice must
be reasonably calculated under all circumstances to apprise interested parties of the
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pendency of the action and afford them an opportunity to present their objections. Court
allows sometimes alternative forms of notice to be allowed.
Must use notice reasonably calculated to reach defendant. Mullane
VII.
Personal Jurisdiction: The Contemporary Framework
Ways for courts to get personal Jurisdiction:
Process of service
1) Defendants voluntary appearance(general)
2) Personal service of process on defendant in the forum state
3) Seizure/attachment of defendant’s property in forum state
and service by pubication Quasi in rem(used in Pennoyer)
Shaffer v Heitner made this go away Now
4) Consent to suit (in advance) a) states can make rule and
have that the company appoint someone to receive service
if want to do business( or one automatically appointed for
you) b) plaintiff who sues in state(counter claim) c) Forum
selection clause(parties pick and consentto where they can
file complaint
5) Domicile in Forum: personal jurisdiction over persons who
have domicile in Forum state but live in another state.
A. Due Process and “Minimum Contacts”
International Shoe Co. v. Washington: (Wa wanted to collect unemployment from shoe
company..they said they didn’t do business there because no store, manufacturer etc and
the salesman were independent workers, not employees)Minimum contacts: to the extent
that a corporation exercises privileges of conducting activities within a state it enjoys the
benefits and protection of the laws of that state . The exercise of that privilege may give
rise to obligations.
Certain minimum contacts with (the forum state) that the maintenance of the suit does not
offend “traditional notions of fair play and substantial justice.”
McGee v. International Life Ins Co. (had a life insurance policy from Arizona co also
sent payments to TX..paid form 44-50(company had reestablished contact when it
changed owners and knew he was in CA)..when he died the insurance company refused
to pay saying it was suicide…she filed complaint in CA and won a Judgement but TX
refused to enforce because said no jurisdiction..However court disagreed and said there
had been minimum contacts enough for CA to have jurisdiction in this case) Applied the
minimum contacts standard from International Shoe.
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Hanson v. Denkla: (a trust fund set up with a Delaware trustee the woman(in PA at the
time) had moved to FL where she died. Her kids were suing the trust filed in FL but court
said no personal jurisdiction over trustee in Delaware did not have minimal contacts with
FL)Purposeful availment A defendant must purposefully avail themselves of the privilege
of conducting activities with the forum state, thus invoking the benefits and protections of
its laws.
Purposeful availmennt: to the extent that a corportation exercises the privilege of
conducting activities within a state it enjoys the benefits and protection of the laws of that
state. The exercise of theat privilege may give rise to obligations and so far as those
obligations arise out of or are connected with activities within the state a procedure which
requires the corporation to respond to a suit brought to enforce them can in most
instances hardly be said to be undue.
Note: who initiates the business relationship matters.
2. State “Long Arm” Statutes
 Long arm statute: point of a long arm statute is to authorize a state court to have
jurisdiction over a defendant in another state. (Under Pennoyer this was not
allowed but is now).
 Long Arm personal Jurisdiction
 1) Satisfy the states long arm statute(each states is different)
 2) due process(that its ok/constitutional) (due process checklist)
 FRCP 4(k)(1)(A)
 Federal District court will have personal jurisdiction through serving process
by following the rules of the state court where the federal court is.
3. Seizure of Property in the Forum State
Shaffer v. Heitner:Case against greyhound company. Seized property of Greyhound in
Delaware(their shares..this was considered property in Delaware..Greyhound corporate leaders
say have no minimum contacts to Delaware). Decides cannot seize property anymore..NO
MORE QUASI IN REM for personal Jurisdiction. Need to consider minimum contacts
When you own land you have a minimum Contact as long as the action has something to do with
the property.
MINIMUM contacts have to do with the TOPIC of the suit. Did this come out of Heitner?
D. Personal Service of Process in the Forum State 6
Burnham v. Superior Court: Divorce case but father was served while visiting his kids and on a
business state. Says that state of CA has no personal jurisdiction over him. Was ok because he
was served in person. Jurisdiction based on physical presence alone constitutes Due process,
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because it is one of the continuing traditions of our legal system that define the due process
standard of “traditional notions of fair play and substantial justice.” That standard was
developed by analogy to “physical presence and it would be perverse to say it could now be
turned against that touchstone of jurisdiction. (physical presence is a foundation of due process)
PHYSICAL PRESENCE(being served in person in a state is a way to have personal jurisdiction)
Note: Minimum contacts only matter when no physical presence in state
5. Purposeful Availment and the Forum State
 MRSP pp. 823-835 (up to “Notes and Questions” section on p. 835)
 MRSP pp. 836-839 (beginning with n. 3 on p. 836 and up to n. 6 on p. 839)
Burger King v. Rudzewicz Rudzewicz and his partner approached BK to make a restaurant in MI.
Went through Franchise training and started running business. Had a 20 year contract. Business
started doing bad and they were not able to make their payments and unable to come up with a
deal. BK terminated the franchise and told them to vacate the premises but they kept operating.
BK sued them for breach and trademark infringement in Florida court. Was a question if FL had
jurisdiction(BK said FL law should govern in contract but not FL court). Rudzewicz- purposely
availed himself of the privilege of conducting activities in Forum state of FL. Because 1) fl
choice of law in contract 2) training in FL 3)dealt with HQ in FL and 4 Money goes to FL.
(important that Rudzewicz approached BK not the other way around).
Long arm statute: Fl long arm statute extends jurisdiction to any person whether or not a citizen
or resident of this state who breaches a contract in this state by failing to perform acts required
by the contract to be performed in this state.
WWVW(Volkswagen) v. Woodson: A claim brought against 4 different defendants. Worldwide
Volkswagen and Seaway(car dealership) claim that OK has no personal Jurisdiction over them.
They both work in NY/NJ and worldwide overseas as well.(the other 2 defendants Audi and
Volkswagen have dealerships and such in OK so there is personal jurisdiction). Argument was
cars are meant to be driven and it was reasonable to believe the car would end up in any state and
the existence of car repair shops and dealerships and knowing that they are there is what helps
them do business. So argument could be made they have minimum contacts simply by the car
being in OK and should have anticipated it would be in OK(or any state)Defedents conduct and
connection with the forum state are such that he should reasonably anticipate being haled into
court(not that it is foreseeable that a product will find itself in a state). Rule: A sellers
amenability to suit (ability to be sued in a state) does not travel with the chattel(stuff) he sells.
Dicta for stream of commerce from (Gray v. Radiator): The forum state does not wxceed its
powers under the due process clause if it asserts personal jurisdiction over a corporation that
delivers its products into the stream of commerce with the expectation that they will be
purchased by consumers in the forum state.
Stream of Commerce: the corporation has to KNOW that their stuff is going to a particular
state.(this is the way businesses are not open to personnel jurisdiction in all states).
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When the product reaches the customer the stream of commerce ends.
McIntyre Machinery v. Nicastro: Nicasto injured his hand using a metal shearing machine
manufactured by Macintyre. The machine was made in UK and sold to a US distributer in Ohio.
NJ where the machine was purchased said it had jurisdiction over McIntyre due to the stream of
commerce. Supreme court said it didn’t. The defendants ability to anticipate suit renders the
assertion of jurisdiction fair. General rule exercise of judicial power not lawful unless the
defendant purposefully avils himself ot the privilege of conducting activities within the forum
state thus invoking the benefits and protections of its laws. Rule: The exercise of jurisdiction
only where the defendant can be said to have targeted the forum state as a general rule it is not
enough that the defendant might have predicted that its goods will reach the forum state. NOTE:
Stream of commerce cannot override purposeful availment. Have to target that particular state.
6. The “Fairness” Factors
• Asahi Metal Indus. Co v. Superior Court: Motorcycle accident due to defective tire. Assahi
made the tire. They filed for indemnification from Cheng shin(who developed the valve for the
tire)..to split the cost of what they had to pay. All defendants settled all that was left was
deciding on indemnification question if CA had jurisdiction over a company in japan selling to a
company in Taiwan and the sale happening in Taiwan.Asahi did not purposefully avil itself in
CA. Rule: Fairness factors:
1) Defendants burden
2) Forum states interest in adjudicating the dispute
3) The plaintiffs interest in obtaining convenient and effective
relief
4) The interstate judicial systems interest in obtaining the
most efficient resolution of controversies
5) Shared interest of the several states in furthering
fundamental substantivesocial policies.
Do you have Personal Jurisdiction: First go through
1)
2)
3)
4)
Defendant voluntarily appeared
Defendant personally served with process in forum state
Domiciled(for person or corporation)
Defendant consent to suit in forum state(ex. Forum selection clause in contract or counter
claim). IF NOT ONE OF THE FIRST 4 go to 5a
5a)defendant has contacts with forum state—purposeful avails itself of the privilege of
conducting activities in the forum state(thereby receiving the benefits and privileges)
Express aiming toward forum state..intentional tort Caldor effects test IF 5 a met go to
5b
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5b)Fairness Factors from ASAHI (first 3 most important)
1) Defendants burden
2) Forum states interest in adjudicating the dispute
3) The plaintiffs interest in obtaining convenient and effective
relief
4) The interstate judicial systems interest in obtaining the
most efficient resolution of controversies
5) Shared interest of the several states in furthering
fundamental substantivesocial policies.
7. The Calder “Effects” Test
Caldor v. Jones: National enquirer wrote a libel story about Jones and she filed suit in CA
even though against Calder(the editor) and South(the reporter) both live in FL. No personal
jurisdiction because of where they live and having not gone to California. Court ruled CA
does have jurisdiction because they lived in florida but knowingly caused the harm in
California. Rule: Caldor Effect Rule 1) commit an intentional Tort 2) Expressly aimed at the
forum state 3)causes actual harm that defendant knows is likely to be suffered in the forum
state.
Walden v. Fiore: Walden was an acting DEA agent who stopped Fiore and Gibson in Atlanta
airport(after tip from DEA in San Juan) because they had a large sum of money(97,000). The
drug dog alerted so they took it as evidence. Fiore and Gibson told them the money was to be
used at casinos in Vega they were professional gamblers. After money seized they proved it was
not from drugs and said that Caldor provided a false statement to try and not give it back. Filed
their complaint in Nevada. Does Nevada have personal jurisdiction. In Walden seizure in GA
and the plaintiff choose to go to NV. Walden did not target Nevada(was not thinking about
Nevada), his tort act if any was not aimed at NV. Defendant has to have a certain state in mind
for caldor effect test. Rule: Personal Jurisdiction cannot be based on where the plaintiff decides
to go
8. “General” Personal Jurisdiction
General Personal Jurisdiction Domicile(person), Corporation(place of incorporation and
principal place of business) ALL PURPOSE A court with general jurisdiction may hear any
claim against a defendant even if all the incident occurred in a different state.
Specific Personal Jurisdiction: claims arise out of or relate to a defendants contacts with the
forum state (Bristol-Myers). There must be an affiliation between the forum and the underlying
controversy. Activity or occurrence that takes place in the forum state and is therefore subject to
states regulations.
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Goodyear Dunlop Tires Operations S.A. v Brown: 2 kids from NC are killed in a bus accident in
France. The accident is said to be because of a tire malfunction. The parents of the 2 boys who
died file a claim against Goodyear in the US and also Turkey, France and Luxembourg.
Goodyear does do business in the US and some of the tires that are made in the European
subsidiaries to make it to the US do they have enough minimum contacts with the forum state for
personal jurisdiction. No no organized or ongoing business relationship with NC. Rule: Contacts
have to be SO continuous and systematic that the defendant is essentially at home(not just
systematic and continuous)
I. “Specific” Personal Jurisdiction
Bristol-Myers Squibb Co. v. Superior Court: Group of plaintiffs are trying to bring a claim
against Bristol myers for Plavix drug in CA. The problem is only 86 are residents of CA and the
others are all from out of state. Bristol Myers is not at home in CA and although does do
business in CA nothing happened to the out of state plaintiffs in CA. They got their medicine in
their home state from their home doctor and had the injury occur in their home state. Defendants
particular conduct in the state is what caused the injury(in order to have specific personel
jurisdiction. There must be a connection between the controversy at issue and the state seeking to
exercise specific jurisdiction. Rule: there must be an affiliation between the forum and the
underlying controversy, principally, an activity or an occurrence that takes place in the forum
State and is therefore subject to the State's regulation.
Ford Motor Co. v. Montana Eighth Judicial District Court: two different cases merged together.
Both were accidents one in Montana and one in MN. Ford says that there is no personal
jurisdiction because it is not at home in either state(Michigan or Delaware are home) and the cars
were designed in MI, manufactured in KY and Canada and had been originally sold in
Washington and North Dakota) The cars were only there because the customers brought them
there after the sale. Ford agrees it has purposefully availed itself in both states BUT believes
jurisdiction attached only if the defendants forum conduct GAVE RISE to the plaintiffs
claims…its conduct in the forum states is what caused the claim. Because Ford purposefully
avails itself and extensively markets in those states exercise of jurisdiction is reasonable and
predictable. Fords contacts did not cause the injury but Fords contacts are related to the injury.
Rule: it is not necessary that the defendant’s forum conduct gave rise to the plaintiff’s claims
VII. Venue
A. Overview
• 28 U.S.C. § 1391(a), (b), (c), and (d) Venue Generally
1391(a),Just saying its about venue
DETERMINE IF VENUE PROPER 1391B work through
1391(b1): A judicial district in which ANY defendant resides
Or
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1391(b2): A district where a substantial part of the events, omissions that made the claim or the
property that is a subject of the action. NOTE: Specific jurisdiction)
Or ONLY IF 1 and 2 DON”T WORK
1391(b3): Any judicial district in which any defendant is subject to the courts personal
jurisdiction
1391 (c1), Residency: person resides(including aliens w greencard) in judicial district domiciled
1391 (c2),Residency business where the defendant is subject to the courts personal jurisdiction
with respect to civil action(Principal place or business and incorporated?)
1391(c3)nonresident of US any judicial district
1391(d):Corporations where more than one fed district district with the most contacts(threat each
district as if its own state)
7
Bates v C&S Adjusters: Bates had a debt and he had lived in PA. He filed a claim against his
debt collectors in NY(where he had moved to) alleging violation of of fair debt collection
policy’s. District court had dismissed for improper venue. However according the 1391 B2
the court must determine whether a substantial part of the events..giving rise to the claim
occurred in the western district of NY. It all hangs on the collection notices that were
forwarded and received by Bates in NY. If company had not wanted that could have not
allowed to be forwarded. Rule: 1391 B2 the court must determine whether a substantial
part of the events..giving rise to the claim occurred where the district filed in is located.
2. Transfer of Venue
For considering Venue look at 1391 to see if venue is proper, then consider transfer
1404a(proper but better venue) or 1406a(improper) for transfer of venue or 12b3 dismissal for
improper venue.

28 U.S.C. § 1404(a) : Change of Venue: Plaintiff got it right(the venue) BUT
theres an even better venue for this action (Transfer PROPER VENUE). Choice
of law rules are DETERMINED by the STATE they are transferred to.

28 U.S.C. § 1406(a) Cure or Waiver of Defects: Court can transfer to correct
district (transfer IMPROPER VENUE) Choice of law rules from the original state
follow.(court where originally filed decides what state laws to apply.
20

Choice of law means the state that gets to decide gets to pick if it will apply
the state laws there or of another state(based on that states laws about
picking what state law to apply).

Spaeth v. MSU College of Law: Spaeth files against 6 law colleges including
MSU for age discrimination because he did not receive an offer. This is a fed
question 1391 case because of age discrimination. He filed in DC. Because that is
where the interviews were. Court considered the factors for transfer and decided
Spaeth was no at home in DC and MSU was not at home in DC. Action of
discriminating against him happened at home campus(MSU not in DC at the
forum. 7 of the 9 factors weighed heavily in transferring the case. Transfer with
1406a Rule: Use the factors for deciding if Transfer of Venue is correct.
TRANSFER OF VENUE factors to consider: ALSO CONSIDER FOR Forum Non Conveniens
PRIVATE INTEREST FACTORS(THAT A COURT MUST CONSIDER FOR A TRANSFER OF
VENUE)
1) PLAINTIFFS PRIVELEGE OF CHOOSING THE FORUM
2) DEFENDANTS PREFERRED FORUM
3) LOCATION WHERE THE CLAIM AROSE
4 CONVENIENCE OF THE PARTIES
5) CONVENIENCE OF THE WITNESSES 6 EASE OF ACCESS TO sources of proof.
Public interest factors include:
1) the transferees familiarity with governing law
2) the relative congestion of the courts of the transferor and potential transferee
3)the local interest in deciding local controversies.
Atlantic Marine Const. Co. v. U.S. District Court: Atlantic marine is a virgina corporation hired
to build a CDC for the Army in Texas. They subcontracted with J-crew management a TX
company. The contract had a forum selection clause for Virginia. Dispute over pay and Jcrew
filed a claim in Tx fed court(OK in fed court due to diversity Tx and Va of the two parties).
Altlantic marine filed for dismiss or transfer to Eastern district of VA where the forum selection
clause said. District court initially said the forum selection clause was only 1 factor out of all the
factors to consider. Then reversed and remanded to transfer under 1404a. Rule: 1) Valid forum
selection clause given controlling weight(with some exceptions) 2) District court may consider
public interest factors ONLY 3) Court should not apply law of transferor of venue(since parties
waived that right). 4) Plaintiff needs to prove public factors overwhelmingly disfavor transfer to
override forum selection clause.
Note: Plaintiff needs to prove in Claim…Venue is good, Personal jurisdiction and
subject matter jurisdiction.
21
Forum Non Conveniens: US district court to a state or foreign court MUST
Dismiss(plaintiff needs to refile because can not legally transfer the case to state or
foreign courts)
Piper Aircraft Co. v. Reyno: Plane crash in Scotland with 5 passenger and a pilot(all are
Scottish and Scottish heirs). All are killed instantly. The airplane(Piper) was manufactured
in PA and the props(Hartzell) made in OH. The British dept of trade suggested a mechanical
failure in the plane or prop was responsible. Hartzell requested a review board and they
found no evidence of mechanical failure.. Reyno is the administrator of the estate of all 5
passangers. She filed in CA state court. Case was removed to fed court and then transferred
with 1404a to PA(pn Pipers request) Hartzell moved to dismiss for lack of personal
jurisdiction or 1404a in 1977. In May 1978 Hartzell and Piper moved to dismiss due to
Forum non conveniens it was granted in 1979.Shoud be filed in Scotland. That’s where it
happened, that’s where all the parties are from. Rule: Should apply Private and Public
Interest factors test when considering Frum non conveniens. Note: unfavorable change in
law should NEVER be relevant consideration in Forum non conveniens. If remedy provided
by alternative forum is CLEARLY inadequate than can be given weight.
VIII. Preclusion
A. Overview
Preclusion: refers to the prohibition on relitigating a claim that has already been litigated and
gone to judgment.
Claim preclusion: operates to preclude litigation of the claim without regard to what issues were
litigated in the first suit.
Issue preclusion only precludes relitigation of those issues that were actually litigated and
necessarily determined in the first suit.
Preclusion
Claim preclusion (Res Judicata).
1) Same parties to the Prior
action(Mutuality)
2) Same Cause of ACTION(same set
of facts, occurrence)
Issue Preclusion (Collateral Estoppel)
1) Same issue
2) issue was actually litigated and
decided the issue
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3) Judgement on the
merits(judgment on first claim
not a procedural judgment)
3) deciding the issue was
necessary to the judgment(not a
small detail)
4) The party against whom
preclusion is sought had a ful and
fair opportunity to litigate in the
first action
2. Claim Preclusion
Manego v. Orleans Board of Trade: Manego wanted to open a night club in parking lot by a
roller skating rink. Roller skating rink(was originally ice skating rink and was temporaily owned
and operated by the bank. They did not want the night club opened and used their influence in
certain groups needed for approval of licenses to get him turned down. His first case was against
board of selectman, bank, and Willard(manager at the bank running the skating rink) on grounds
of discrimination. Wouldn’t grant him his licenses because of his race. The defendant was
granted summary judgment because after extra time for discovery. Manego could not come up
with any proof aside from not getting the licenses that the discrimination had happened. Then
files second claim against Almost all the same people plus Board of trade with an antitrust claim
but its on the same situation and set of facts. (this case the same conduct alleged for 2 different
motives should have been brought together at the same time) Rule: Factual basis for each claim
needs to be different(between one claim and a later claim and the same parties) otherwise res
judicata.
3. Issue Preclusion
Little v. Blue Goose Motor Coach: Accident between mr. Little and a bus. The bus company
filed a claim against Mr. Little and it went to justice of the peace. Judgment for the bus
company(Little paid 139.35) Found to have no contributory negligence for bus company. Mr.
Little has died and wife is bringing a claim against Bus company for negligence and willful
negligence for the same accident. Mrs. Little is his privy so counts as same parties. Issue of if
Blue goose was negligent was already decided on with the judgement for Blue Goose that also
said no contributory negligence…therefore not negligent in action. Rule: Issue preclusion
because the issue already received a judgment in previous case and new case was trying to retry
the same issue for a different claim.
Halpern v. Schwartz: First case was against Halpern to force her into Bankruptcy. She wants a
discharge from the bankruptcy for the transfer to her son. It was one of 3 reasons they found to
involuntarily put her in bankruptcy. The question is if she can file a claim on an issue considered
in the first case if it was not an important issue to the case but one of many. Rule: Prior Judgment
23
will not foreclose reconsideration of the same issue IF THAT ISSUE was NOT NECESSARY to
the rendering of the prior judgment(was incidental or immaterial to the judgment). losing party
could relitigate an issue if he could demonstrate that the first action failed to allow him a “fair
opportunity procedurally, substantively and evidentially to pursue his claim.
Parklane Hosiery Co. v. Shore: Parklane Hosiery lied on its proxy statement(probably to get
investors to approve merger). SEC filed suit alleging it was materially false and misleading
statement and requested injunctive relief. 4 day trial(without Jury and no one allowed to join the
suit with SEC). Judgment for SEC that statement was false. Stockholder bring a 2nd suit. Want to
use offensive estoppel to allow the issue that the statement was already found false be used in the
second trial. Court decides offensive estoppel can be ok but need to consider factors if to allow
it. In this care decided Parklane was given a full and fair opportunity to litigate the claims and so
the issue does not need to be relitigated(could be times where it must be). Rule: Offensive
estoppel is allowed but trial courts have broad discretion to determine when it should be applied
(consider 4 factors for issue.
Issues to consider for Nonmutual Offensive Estoppel(issue preclusion) (it is allowed but trial
courts have to make sure it is fair)
1)
2)
3)
4)
wait n see plaintiff
inconsistent judgments
lack of procedural opportunities
disincentive to litigate vigorously
Defensive collateral estoppel: is blocking an issue from being tried (sought by a plaintiff)
Offensive Collateral estoppel is allowing an issu that’s been decided to be applied in a separate
trial. (can be non-mutual meaning a party different this cannot be with claim preclusion) (sought
by a defendant)
IX. Joinder
1. Joinder of Claims
 FRCP 18(a) Joinder of claims: A party may join as many claims as it has against
an opposing party. IF you got it you can bring it. Note: subject matter jurisdiction
etc may disallow.
 Joinder of claims (rule 18a) is completely permissive as to joinder of claims
against the SAME party in a single suit(13 a and b regarding counterclaims
are similarly permissive). It allows a party to join as any claims it has against
an opposing party. The claims need not be related(could be a breach of
contract and tort together for ex).
 NOTE rule 18a..is just a pleading rule…the court may decide to process
them(under rule 42b serpately if fairness or convenience justifies separate
treatment.
24

FRCP 42(b) separate trials: courts may order separate trial of one or more
separate issues, claims, crossclaims or third party claims. Note: would do this
when could confuse jury or doesn’t make sense to put together.
 Rule 42b a court may sever unrelated claims and order separate trials when
it would be “for convenince to avoid prejudice or to expediate and
economize.
2. Counterclaims and Crossclaims
 FRCP 13(a), (b), (g)
 13(a):Compulsory Counterclaim: arises out of the transaction or occurrence that is
the subject matter of the opposing party’s claim….13a) sort of rule mandated
res-judicata. Barring recovery on a claim arises out of the
transaction/occurance that is the subject matter of the opposing party’s
claim.
 13(b):Permissive Counterclaim: a pleading may state as a counterclaim against an
opposing party any claim not compulsory(so anything not from the main
occurrence)….. 13b liberal permissive counterclaim a party to bring as a
counterclaim any claim against the opposing party. Permissive counter claim
is one that does not arise out of the same transaction or occurance
 13(g): Crossclaim against a COPARTY: (NOTE No permissive or compulsory
crossclaim): a crossclaim may be any claim by one party against a coparty arises
out of the transaction or occurrence.The claim may ber a claim that the coparty is
liable to the cross-claimant for all or part of the claim asserted against the
party…..13 g Cross claim allows a claim against a coparty(plaintiff or
defendant) arising out of the transaction or occurrence.
 13h additi0on of claims can result in the addition of parties if they can be
sued a additional parties to the counterclaim or crossclaim.
3. Permissive Joinder of Parties
 FRCP 20(a) Permissive Joinder of parties a1) plaintiffs and a2 defendants but
both consider 1) relates to or arises out of the same transaction or occurrence and
2) common question of law or fact.
 FRCP 21 Misjoinder of Parties: not grounds for dismissing an action. Add or drop
a party. The court may also sever any claim against a party.
 Indemnity is similar to insurance..you cover me 100 percent and contribution split
the costs between party’s
Spaeth v. MSU College of Law: Spaeth files against 6 law colleges including MSU for age
discrimination because he did not receive an offer. This is a fed question 1391 case because of
age discrimination. He filed in DC. Because that is where the interviews were. He also wanted
all the 6 colleges together in the same trial. The law schools wanted to be separated Court
severed all the cases. Rule: CANNOT join defendants who simply engage in similar types of
behavior but who otherwise are unrelated; some allegation of concerted action between
defendants is required.
Insolia v. Philip Morris, Inc: 3 former smokers and their spouses bring a claim against the
country’s cigarettes companies. Defendants say claims are improperly joined under rule 20.
Because do not arise out of the same transaction and because do not share common fact of law.
25
Plaintiffs say they arise from an industry wide soncspiracy to deceive consumers about the
addictive characteristics of cigareetes. Problem defendants all have different types of cancer
started smoking at different times(one before the campaign allegedly started. Cases need to be
severed to unrelated. Rule: Claims must be sufficiently similar to warrant joining them in a
single proceeding(under Rule 20)
4. Impleader of Third-Party Defendants
 FRCP 14(a), (b) Third Party Practice
 a2a 3rd party defefndent must assert any Rule 12 defense
 a2b must assert any Compulsory counter claim and May bring any permissive
counterclaim
 a2c may assert any defense(outside of rule 12?)
 a2d may also assert any claim arising out of the transaction or occurance that is
the subject matter of the plaintiffs claim against the third party plaintiff.
 A3 plaintiffs claim against 3rd party defendant may assert any claim arising out of
the transaction or occurance that is the subject matter of the plaintiffs claim
against the third party plaintiff.
 14b: A plaintiff may bring in a 3rd party when a claim is asserted against a
plaintiff and the rule allows the defendant to also bring in a 3rd party.
 A4 motion to sever..anyone can do this with third party.
Clark v. Associates Commercial Corp: Clarks tractor trailor was repossed as collateral for a loan
with Associates. In the repossession Clarks leg was broken. Defendant then filed a 3rd party
complaint seeking indemnity from its employee Howard and 2 people who assisted him in the
repossession. The employees(3rd party defendants moved to dismiss the complaint and the
plaintiff moved to strike the complaint or have a separate trial of the isssues raised. Purpose of
Rule 14 is to accomplish in one proceeding the adjudication of the rights of all persons
concerned in the controversy and to prevent the necessity of trying several claims in different
lawsuits. Rule: Court should allow impleader of a proper third party action unless it will result in
some prejudice to the other parties.
X. Pleading Claims and Defenses
1. The “Short and Plain Statement” Requirement Complaint needs: grounds for court of
Jurisdiction, show the plaintiff is entitled to relief, demand for relief sought
FRCP 8(a) Rule 8a2 requires only that the plaintiff provide a short and plain statement of the
claim showing that the pleader is entitled to relief.
Bell Atlantic Corp. v. Twombly: Twombley is a class action group of all subscribers of the local
phone company. The defendants are all the companies(Baby Bell) from when At&T was forced
26
to split up. They were called ILECs and were told they had to let new competitors the CLECs
compete and also share their phone lines. The phone companies for the most part did not play
nice and were trying not to share or let the other companies compete. The class action alleges
that they were working together in violation of the antitrust (Sherman act). But the
claim(pleading) mirrors the exact language of the rule and has no real facts at all. The court
dismissed the complaint because there were no facts to support the allegation. Rule: A complaint
must contain either direct or inferential allegations respecting all material elements necessary to
sustain recovery under some viable legal theory. Once a claim has been stated adequately it may
be supported by showing any set of facts consistent with allegations in the complaint.
Ashcroft v. IQBAL: Was a Pakistan citizen and muslim. Was arrested after 9-11 on charges of
illegally being in the country(fraud). Does not dispute these charges and arrest. However while
in custody was kept in high security population because thought to have tessorist ties..also a
number of abuses committed against him while in custody. He alleges that the abuses arose
under a policy by then FBI director Mueller and US Attoney General Ashcroft to discriminate
agsint him and determine he was a person of high interest simply because of his race and
religion(since all the people also arrested that he say were all Arab and muslim. Rule: No
discovery fishing…1st Court accept all allegation as true(in a complaint) UNLESS they are
LEGAL CONCLUSIONS. 2nd Only a complaint that states PLAUSIBLE claims survives a
motion to dismiss. DETERMING whether a complaint states a plausible claim will be
CONTEXT SPECIFIC TASK that requires the reviewing court to draw on its judicial experience
and common sense. Needs some sort of evidence most likely to get to this level.(can be
circumstantial so long as no good rational reason could also explain the circumstantial evidence
away).
2. Pre-Answer Motions
 12a1:Defendant must serve an answer, in 21 Days(60 days if waived service, 90
days if international)…must serve answer to counterclaim or cross claim in 21
days
 12b: if file 12 b motion..answer not needed (unless denied)
 12b1 lack of subject matter jurisidciton
 12b2 lack of personal jurisdiction
 12b3 improper venue
 12b4 insufficient process
 12b5 insufficent service of process
 12b6 failure to state a claim
 12b7 (DIDN”T COVER)…failure fo join a party under rule 19
 12g:Can bring more than one motion at a time
 12h: Party waives defenses (for lack of personnel jurisdiction, improper venue,
insufficient process and insufficient service of process) if they do not file in a
motion….Must be in the 12 b motion or Answer(whichever is filed first)…failure
to state a claim, rule 19b person joined(required) and legal defense to claim can
be brought up at trial…Subject matter jurisdiction can be brought up at any time.
3. Admitting and Denying Averments
27

FRCP 8(b) :Defendant must either admit, deny or sate they lack knowledge or
information sufficient to form a belief about the truth of an allegation..If do not
deny all allegation must provide an answer to each allegation.
 MRSP pp. 229-231 (up to n. 3 on p. 231)
4. Affirmative Defenses
 FRCP 8(c) : agree that the plaintiff has stated a claim BUT we have a defense that
makes us not liable.(list of some of the affirmative defenses:
 • accord and satisfaction;
 • arbitration and award;
 • assumption of risk;
 • contributory negligence;
 • duress;
 • estoppel;
 • failure of consideration;
 • fraud;
 • illegality;
 • injury by fellow servant;
 • laches;
 • license;
 • payment;
 • release;
 • res judicata;
 • statute of frauds;
 • statute of limitations; and
 • waiver.
David v. Crompton: Products liability case. David injured by machine thought to be made by
Crompton(was actually made by Hunter which Crompton had bought after the product had been
bought). In the initial answer Crompton answered to the question of if it designed. Manufactured
or sold the machine: that it did not have sufficient knowledge. This may have been true but it
then realized it was not liable for Hunter products at the time this was purchased(but still owner
the hunter company) so stalled telling David that it was a Hunter product until the statute of
limitations had run out to file a complaint against Hunter. RULE: Judge ruled that their answer
of not sufficient knowledge to admit or deny would be taken as an admittance of their
machine..even though it wasn’t)
F. Amendments to Pleadings
1. Overview




FRCP 15(a): amending a pleading Can amend pleading up to 21 days after filed(without
any permission) (or 21 days after a response or service of motion
15a2 if after 21 days need permission of opposing part or the court to amend.Court
should give permission freely when justice so requires.
Reasons court may not give permission
1)undue delay
28


2) undue prejudice(how will the amendment affect the nonmoving party)
David v. Crompton: Products liability case. David injured by machine thought to be made
by Crompton(was actually made by Hunter which Crompton had bought after the product
had been bought). In the initial answer Crompton answered to the question of if it
designed. Manufactured or sold the machine: that it did not have sufficient knowledge.
This may have been true but it then realized it was not liable for Hunter products at the
time this was purchased(but still owner the hunter company) so stalled telling David that
it was a Hunter product until the statute of limitations had run out to file a complaint
against Hunter. Then tried to amend their answer. Court refused them.This case had an
example of violating both parts stalled on purpose to have statute of limitations expire
and by allowing them to amend David has no one it can file a claim against for its injury.
Rule: Normally court should approve unless justice requires otherwise. Court needs to
consider Undue delay(why did it take so long) and Undue prejudice( how will it affect
the nonmoving party.

XI. Judgment as a Matter of Law
(NOTE JUDGEMENT ON THE PLEADINGS..before discovery 12c)
1. Summary Judgment (AFTER DISCOVERY BEFORE TRIAL RULE 56)
 FRCP 56(a), (b) Court must grant summary judgement if moving party has NO
genuine disputer(issue) as material fact.
Celotex Corp v. Catrett: Catrett died (wife filed) from asbestos exposure. Named 15
corporations(manufacturers and distributers). Celotex argued for summary judgment because
failed to produce evidence that Celotex product was the proximate cause of the injury. She
brought 3 pieces of evidence from insurance company, deposition of her husband and letter from
a former employee of her husband. Celotex said all evidence hearsay not admissible in court.
Remanded to see if she had enough evidence or not..evidence does not have to be eld to the same
standard as court.(more accepting threshold). Rule: Summary Judgement must be granted when
not enough evidence provided to show a genuine issue of material fact.
2. Judgment as a Matter of Law (During Trial and After Trial) 50 a or b
 FRCP 50(a)(1), (b) Court finds during the trial or after the Jury verdict that a
reasonable jury based on the evidence could not find for the plaintiff(or
defendant..but very rare that this is the case) then can file for Judgment as a
matter of law(directed verdict if before Jury) 50a or Judgement
NOV(notwithstanding the verdict) 50b if after the jury verdict.
 QUESTION: could a reasnoble jury based on preponderance of the
evidence(more than 50 % sure) find for the plaintiff? If no than defendant should
be granted summary judgement(or Judgment as a matter of law depends on where
in the claim process you are).
If fail in one element of the claim makes all other elements IMMATERIAL.