Pleading COMPLAINTS 8(a) Complaint must include short and plain statement: 1) jurisdiction (SMJ, PJ, Venue) 2) statement of the claim (law) and evidence that entitled to relief (fact); and 3) a demand for the relief sought, which may include relief in the alternative or different types of relief (judgement) (applies to counter-claims, cross-claims, and third party complaint) Twiqbal: plausibility as pleading standard; 12(b)(6) – Failure to State a Claim 1) identify the cause of action and its elements 2) ignore any allegations that merely recite elements of the cause of action with no supporting evidence (conclusory/legal elements) 3) consider whether the remaining factual allegations (taken as true) are plausible and support liability under those elements Taken as true unless clearly unbelievable Fraud 9(b)– must be plausible on its face • With particularity (must state who, what, where, when, why of the alleged misrepresentations) Defendant: - Affirmative Defense must be in answer 8(c) has list - If not pleaded, they are waived Amendments 1. If the SOL has not run, Plaintiff can always withdraw initial complain and refile with the amendments 2. 15 (a) & (C) after the SOL has run 15 (A) A(1) a – w/in 21 days; permissive or A(2) – will opposing party or court give consent Defendant - More defendants alleviate the pressure - More defendants will want to allege wrongdoing by D - Unnecessary delay while D’s assets are restricted & litigation costs continue to rise Court – Is this fair? - Reasons for the delay (why was it delayed/the amendment late) - Bad faith? - Whether the newly-added parties are prejudiced by the amendment - Whether trying the case on the merits requires adding the other two parties RULE 20 must be met 15 (C) C(1) a – relation back statute included in State Law Check to see if it the statute mentions that it arises out of the same transaction or occurrences C(1) b - add claim C(1) c - add party – 15C1b must be satisfied Same transactions or occurrences The claims arise form the same nucleus of operative facts…(Bonerb) notice w/in 90 days (Rule 4m) Filing complaint OR SOL running Not be prejudiced (i) and Known or should have known (ii) Joinder 18(a)- Joinder of Claims Against Opposing Party: ANY CLAIMS may be joined Court can sever lots of unrelated claims R42(b) Sentence Frames: The result is appropriate, given the efficiency and consistency goals of R20(a)p. As long as the claims will require resolution of common issues, joint litigation in a single suit will save time for the parties, the witnesses, and the court. Joinder of Lots of Unrelated Claims: If a single trial does not make sense, the court may order a separate trial of the unrelated counterclaim pursuant to R 42(b). 13- Crossclaims & Counter Joinder of Claims 13(a)(1)- Compulsory counterclaims (A) arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; AND (B) Does not require adding another party who the court does not have jurisdiction over 13(b) – Permissive Counterclaim Any claim that is not compulsory 13(g)- Crossclaim Always compulsory subject matter of the transaction or occurrence 20(b) allows to separate parties (factors to consider) R18(a) – Permissive Joinder of Parties by Plaintiff AND R13(b)- Permissive Counterclaims Function basically the same by giving plaintiffs and defendants lots of freedom to assert all claims!!! 20Permissive Joinder of Party (a)(1) – Plaintiffs ; (a)(2)- Defendants Same transaction and occurrence, or series of transaction or occurrences Common question of Law or Fact Judicial Economy & Prejudice The issues sought to be tried separately are significantly different from one another? Will there be a significant overlap of witnesses and testimony? Whether the party opposing the severance will be prejudiced if granted? Whether the party requesting the severance will be prejudiced if not granted? 19 (A)- Compulsory Joinder of Party Rule 19 establishes a two-step process for analyzing compulsory party joinder. It is meant to be a narrow requirement. The first question is whether a person is a necessary party. Under 19(a), there are three tests to see if a person is a required party, and only one of them must be met, not all three. Rule 19(a)(1)(A) requires joinder if “in that person’s absence, the court cannot accord complete relief among existing parties.” As between [current P] and [current D] , their dispute can be completely resolved whether or not [alleged necessary party] is a party. Rule 19(a)(1)(B)(i) requires joinder if the current lawsuit will impair or impede the person’s ability to protect their interest. Whatever happens in the current lawsuit, [Alleged Necessary party] remains free to bring a separate action. Rule 19(a)(1)(B)(ii) requires joinder if the party is required to prevent the risk of inconsistent obligations As clarified by Temple, joint tortfeasors are not required parties. The plaintiff may bring the parties together using permissive joinder of parties pursuant to R20, but they are not required to. If they are necessary party under R19(a) then… 19 (B) If JOINDER IS INFEASIBLE Rule 19 (b) is required when the party finds that they are required under R19(a) but where joinder would pose a jurisdictional issue. If the court lacks personal jurisdiction or subject matter jurisdiction, then joinder would be impossible. Does the court have Personal Jurisdiction: Rule 4(k)(1)(B) expands a federal court’s jurisdictional reach for joining parties under R19 to within 100 miles of the courthouse. If the party cannot be served w/I 100 miles and otherwise is not subject to the courts personal jurisdiction, then joinder is impossible. Would the court retain subject matter jurisdiction? If answer is NO to EITHER then the court has to determine if In the interests of justice and equity if it makes sense to proceed without the absentee, or not to proceed at all. Rule 19 provides four factors for the court to consider in making this determination To what extent might a judgement be prejudicial to the parties or to the absent person? To what extent can relief be shaped to avoid prejudice. Ex. If the court can minimize the prejudicial impact by awarding money damages instead of injunctive relief then dismissal may be unwarranted. Whether judgement in the persons absence would be adequate? Whether the plaintiff would have a remedy if the case was dismissed? Summary Judgement Checklist: - Rule 56(a): - 30 days after discovery Any party can move for SJ SJ shall be granted if: Shows no genuine dispute as to any material fact and movant is entitled to judgement as a matter of law. Material fact: fact that might affect the outcome of the issue Genuine Dispute: can a jury could reasonably find for the nonmoving party? Evidence for non-moving party must be insufficient for jury to reasonably find for nonmoving party. - The evidence on the record must give rise Burden of Production/Persuasion 1) If moving party will bear burden of persuasion at trial, that party must support its motion with credible evidence showing prima facie case– using any of the materials specified in rule 56c that would entitle it to a directed verdict if not controverted at trial –burden production then shifts to nonmoving party to prove there will be a genuine issue for trial 2) If the nonmoving party will bear the burden of persuasion at trial, the moving party may seek summary judgment o Submit affirmative evidence that negates an essential element of the nonmoving party’s claim o The moving party may demonstrate to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim- lack of supporting evidence • Inferences and Situation must be construed in the light most favorable to the non-movant! Minimally Reasonable Inference: • • Not enough merely to allege dispute Need real evidence, beyond the pleadings (can be already in the record) • Support reasonable, alternative version of the truth Framework for Summary Judgment Established by Trilogy: •Celotex: A party making a motion for summary judgment does not need to provide affirmative evidence (in the form of affidavits) to support its motion if they are moving under the idea that the plaintiff did not sufficiently prove a material element of their claim. •Liberty Lobby: The standard for summary judgment mirrors the standard for a direct verdict ( Zenith: If plaintiff’s claim is implausible in context, plaintiff must furnish more persuasive evidence to defeat S.J. Judgement as a Matter of Law (Directed Verdict) R 50(a): No genuine issue of material fact and so clear Made before case is submitted to jury Must specify judgement sought and basis for motion Same standard as SJ Court’s options: Rule on it Wait until after jury verdict Renewed Judgement as a Matter of Law (JNOV) R50(b): After jury verdict Must have previously moved for JMOL Must specify grounds for motion -jury returned verdict that no reasonable jury could; jury was irrational Court’s options: Grant motion and enter judgement as a matter of law -no new trial Allow existing judgement to stand (deny motion) Order a new trial (not popular) Only okay when evidence on one side is so weak or so strong Personal Jurisdiction 1. Long-Arm Statute? § 1.03. Personal Jurisdiction Based on Conduct. (a) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action claim for relief arising from the person's (1) transacting any business in this state; (2) contracting to supply services or things in this state; (3) causing tortious injury by an act or omission in this state; (4) causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or (5) having an interest in, using, or possessing real property in this state ; or (6) contracting to insure any person, property, or risk located within this state at the time of contracting]. (b) When jurisdiction over a person is based solely upon this section, only a cause of action claim for relief arising from acts enumerated in this section may be asserted against him. 2. CONSTITUTIONAL? – Due process analysis In multiple plaintiff cases, analyze specific jurisdiction over the defendant on a plaintiff-byplaintiff basis Sentence Frames: The defendant may/may not be sued in the state on this claim under the minimum contacts test because it has/has not purposefully conducted activities there, and the claim does/does not arise out of this purposeful contact. The plaintiff’s unilateral contacts with the forum do not create a constitutional basis for requiring the defendant to defend there. Hanson Though the action may be foreseeable, that is not enough. WWV There is a critical difference between an act which has an effect in the forum state and one directed at the forum itself. See Walden X has waived their jurisdictional elements by defending on the merits without objecting to jurisdiction. It must always be raised in the first response! Failed Collateral Attack: [STATE] is bound by the Full Faith and Credit Clause to enforce the judgment. Subject Matter Jurisdiction 1331 – FQ Tort Actions, K claims = State Law Patent/Copyright Law, admiralty or maritime = Fed Must be basis of Plaintiffs Claim (well pleaded complaint) Sentence Frames: Here, X relies directly on federal law as the source of the substantive right they seek to enforce 1332 -- Diversity Jurisdiction Citizenship: Individuals: Domiciled -physical presence and intent Corporations: incorporation and principal place of business (“nerve center”) Complete diversity needed (Strawbridge) Amount in Controversy: 75,000+ Good faith claim P can aggregate Claims 1367 – Supplemental (a) – FQ & Diversity – so related Party can be joined if their AiC does not meet but satisfies the so related req’t (b) If Diversity alone, and plaintiff joining claim would destroy diversity then not allowed Discretionary Refusal of Supplemental Jurisdiction Will the court decline jurisdiction over the additional claim? Does the claim raise a difficult issue of state law? Does the state law claim substantially predominate? Has the court dismissed the claim over which it has original jurisdiction? Is there some other compelling reason to decline jurisdiction? If yes to any court may decline to exercise supplemental jurisdiction Not Valid $40,000 $80,000 Valid △ △ 𝜋1 𝜋2 $40,000 $40,000 △ $40,000 𝜋 $40,000 $40,000 △1 △2 Preclusion – Efficiency, Consistency, Finality Res Judicata/Claim Preclusion Same Claim Transactional Test- **majority** does it arise out of the same underlying transaction or series of transactions (factual situation)? Same Parties or those In Privity (Gonzalez) Substantial Control Virtual Representation Valid & Final Judgment Did the first court have PJ or SMJ? Interlocutory judgments are not final enough Judgements on Appeals are still considered final (in most jurisdictions) On the Merits Judgments for plaintiffs are nearly always on the merits Dismissals for lack of jurisdiction, improper venue, or failure to join a party are NOT on the merits Other dismissals are on the merits UNLESS court dismisses “without prejudice” or “with leave to amend” Voluntary Dismissals are w/o prejudice unless specified Substantial Control Insurer assuming insured’s defense Indemnitor who defends action against indemnitee Owner who controls litigation against firm NO: nonparty retaining attorney of party NO: nonparty assisted in financing NO: nonparty testified as witness NO: nonparty procured witnesses/evidence NO: nonparty furnished his attorneys assistance Burden on D who asserts there was sub control Virtual Representation No Special or Legal Relationship Between the Groups Always Constructive or Actual Notice of Earlier Suit Actual or Implied Consent to Be If all of these are true, then the Def can file a 12b6 motion Bound or R8c Affirmative defense. No signs of bad faith for not joining Sentence Frames: group The underlying goal of claim preclusion is to promote efficiency, consistency, and finality, and the transactional test tends to further those goals. The rights of different plaintiffs to relief arising out of a single incidence are not considered one claim just because they arise out of the same transaction/facts Issue Preclusion/Collateral Estoppel Identical Issue of fact/law Actually litigated Was evidence about the issue presented at a pervious trial or in SJ papers? Logically, is it clear (even in a general verdict) that the issue was litigated? Valid and Final judgment Essential to judgment → Jarosz Did the issue get treated closely and carefully enough to be essential to the judgement? Did this issue actually impact the verdict? Alternative holdings? May not have preclusive effect Was the party to be bound either a Party or in Privity with a Party Non- Mutual Issue Preclusion Offensive C/E: courts are much more reluctant to permit- Parklane Could the party trying to assert Collateral Estoppel have intervened in the earlier suit? Did defendant have incentive to litigate the first action? Are there previous inconsistent judgments? Are there any procedural opportunities available to defendant in the second suit that was not available in the first suit? Defensive: Non-mutual Def uses to preclude P on issue they lost on already. – PLAINTIFF HAD TO LOSE ALREADY