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12b Motions
12b1: Lack of Subject Matter Jurisdiction
12b2: Lack of Personal Jurisdiction
12b3: Improper Venue
12b4: Insufficient Process
12b5: Insufficient service of process
12b6: Failure to state a claim upon which relief can be granted
12b7: Failure to join a party under Rule 19
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Subject Matter Jurisdiction
1. Must have Constitutional authority AND statutory authority
a. Constitution lists diversity and federal question
2. Type of Jurisdiction?
a. Diversity § 1332
i.
Diversity of Citizenship
1. Must be complete Strawberry v. Curtis
ii.
Amount exceeds $75K
1. Defendant can strike $ only if legal certainty that plaintiff will not get.
JTH Tax, Inc. v. Frashier
2. Can aggregate claims between one plaintiff and one defendant, otherwise
no.
3. Putative okay, but scrutinized more closely
b. Federal Question § 1331
i.
Constitution or federal statute provides right.
ii.
Embedded federal question in state law
1. Use factors from Gunn v. Minton to decide. Rare.
iii.
Other
1. Has to be in complaint, cannot be a defense. Well-pleaded complaint =
fed qu must be necessary to complaint. Louisville & Nashville Railroad
Co. v. Mottley
2. If fed qu, supplemental jurisdiction = common nucleus of fact
(Constitution) and 1367 (statute)
3. If diversity, supplemental jurisdiction = common nucleus of fact
(Constitution) and 1367 (statute) ****exceptions
a. Gibbs
**in a state court?? Let’s try to remove it!
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Personal Jurisdiction
1. Statute or federal court rule gives court power over defendant
a. Fed court: 4k, power is whatever state statute says
b. State statute? Probably long arm, says whatever Constitution allows
2. What does Constitution allow? DPC issue
a. Specific
i.
Minimum contacts: International Shoe
1. Purposeful availment: WW Volkswagen
2. Does the suit relate to (Ford) or arise out of the contacts (IS)?
3. Fairness factors: WW Volkswagen (really not applied anymore, but good
to mention, especially if it suggests a different result)
4. Stream of commerce alone not enough (maybe? plurality), needs to be
intention about the market. McIntyre
5. Internet? Zippo test: passive = no jurisdiction; facilitates contractual
relationships = jurisdiction
6. One contact enough? McGee
b. General Daimler v. Bauman
i.
Individual = domicile Sheehan v. Gustafson
ii.
Corporation = principal place of business; place of incorporation. Hertz
c. Presence
i.
Served there? They gotchu. Burnham *but remember, plurality. May or may not
have to apply fairness factors.
d. Consent/Waiver
i.
Waiver: failed to raise 12b2 defense, you lose it
ii.
Consent: contracts bb
3. Other
a. 4k1a: Federal courts have no more jurisdiction than state courts have, maybe some
exceptions
b. 4k1b: 100 mile rule, needs to be joined by 19 or 14
c. 4k1c: if authorized by federal statute
d. Don’t have contacts with one state and foreign entity? Look at 4k2
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Twombly & Iqbal Pleading Standard
1. FR 8a: short and plain statement
2. How to interpret?
a. Only look at the facts, not legal conclusions.
i.
Strike legal conclusions and keep facts
ii.
Ie, not neglect, breach of contract. Texting while driving okay, failed to provide
insurance $ okay.
b. Based on facts (assume them to be true), reasonable inference defendant is liable for
misconduct?
i.
Must support a plausible claim, using judge’s own experience and common sense
ii.
This is the legal sufficiency standard
c. Does the statement give fair notice of the suit and claims?
i.
Factual sufficiency standard that survives from Conley v. Gibson
3. Does it apply to defenses? Kinda. See Geomc Co. v. Calmare Therapeutics Inc.
a. Apply standard in context of defenses, ie if you’ve had less time to get all the facts.
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Joinder
1. Required Party Joinder: 19a1 (can be used by plaintiffs or defendants)
a. A: in that person’s absence, the court cannot accord complete relief OR
b. B: practical interest that absence might i) impair or impede person’s ability to protect the
interest OR ii) risk of multiple or inconsistent judgments
c. Framework:
i.
1. Plaintiff’s interest (in complete relief)
ii.
2. Non party’s interest
iii.
3. Defendant’s interest (in double, multiple, or inconsistent relief)
d. If can’t join party, then what?
i.
19b: When not feasible, and must dismiss?
ii.
Factors to consider: 1 prejudice against absent party or existing parties 2 extent
prejudice can be avoided 3 whether judgment in absence would be adequate 4
whether plaintiff would have an adequate remedy if dismissed.
e. Makah Indian Tribe v. Verity
f. ***need to have SMJ, PJ, and proper venue for all parties
2. Permissive Party Joinder: 20a (only for use by plaintiffs)
a. 1: Plaintiff; 2: Defendant
b. A: Same transaction or occurrence AND
c. B: Any question or fact common to all (plaintiffs/defendants)
i.
Interpreted fairly broadly, Griggs v. Holt
d. ***need to have SMJ, PJ, and proper venue for all parties
3. Impleader: 14
a. Think of as a separate case, so don’t need to worry about plaintiff if diversity
b. Tricky rules of jurisdiction here. Okay for third party defendant to put claim against
plaintiff, not necessarily okay for plaintiff to claim against third party defendant.
c. Not to be confused with INTERPLEADER 22
4. Claim Joinder: 8, 13, 18
a. FR 18: May join as many claims are you have against an opposing party, but you don’t
have to.
i.
As long as your first claim has proper jurisdiction
b. FR 13: Counter Claim
i.
13a1: Compulsory counter claim - must state if claim is (a) same transaction or
occurrence and (b) don’t have to add another party that court does not have
jurisdiction over. (Exceptions 13a2). If not brought, lost.
1. Doesn’t need independent basis of fed jurisdiction
ii.
13b: Permissive counter claim - may state; different transaction
1. Needs own independent jurisdiction basis
c. FR13g: Cross claim, **same transaction or occurrence**
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Preclusion
1. Claim preclusion – **only same parties + privities in same positions
a. Show that case 1 ended in a valid final judgment on the merits.
i.
All judgments on merits unless based on jurisdiction, venue, or indispensable
parties.
b. Claimant asserted the same claim (or should have asserted) in case 1 and case 2.
i.
Claim = transaction or occurrence
2. Issue preclusion –
a. Case 1 ended in a valid final judgment.
b. Issue was actually litigated and determined in case one.
c. Issue was essential to the judgment in case 1.
d. Against whom is issue preclusion used?
i.
**Can only use against someone who was a party to case 1.** (DPC – chance to
litigate)
e. By whom is issue preclusion asserted?
i.
Between the same parties (or their “privies”)
1. Yes: the mutuality rule (same parties and privies)
2. No: Defendants issue preclusion (defensive collateral estoppel)
a. Cannot use to enjoin a plaintiff who was not a party to the first
case because DPC.
3. No: Plaintiff issue preclusion (offensive collateral estoppel)
ii.
Reasons not to allow offensive preclusion: Parklane Hosiery Co. v. Shore
1. Ability to join prior case
2. Unfair to defendant
3. Incentive to litigate
4. inconsistent verdict
5. Procedural opportunity