Personal Jurisdiction
●
●
Old PJ
○ Pennoyer v. Neff: CA/OR property dispute. Neff in CA and could not be served w/
process in Oregon for the Oregon Court to have PJ over him. Tried to serve him
in CA. Court ruled it was improper.
■ Takeaway: Origin of contact w/ state requirement.
■ Creation of Territorial Theory
○ Every state possesses exclusive jurisdiction and sovereignty over persons and
property w/in its territory
■ Territorial Theory
○ Validity of every judgment requires jurisdiction of the court before it is rendered.
○ Refinements to Territorial Theory:
■ Transient Presence: Grace v. MacArthur
■ Absent Citizens: Blackmer, Milliken v. Meyer
■ Unrelated Plaintiffs: Adam v. Saenger
■ *(Exception) Fraud against non-resident defendant: Tickle v. Barton
○ Hess v. Pawloski: Out of state resident in car crash in MA. Leaves state. MA
made statute appointing anyone who was using the roads in state an agent
within MA. Acceptable under 14th amendment.
■ Takeaway: State can require implied consent for an agent to be
appointed who can be served w/in state.
New PJ
○ International Shoe: Out of state shoe company employs a small number of
salesmen in CA. No factory/ other real operation. Shoes shipped from out of
state.
■ Takeaway: Employing 10+ salesmen and soliciting orders within a state is
sufficient for PJ because not sporadic, irregular, or casual.
■ Beginning of minimum contacts.
■ Beginning of allowing long-arm statutes.
■ Purposeful Availment
○ International Shoe Minimum Contacts Test:
■ PJ is proper if:
1. Minimum contacts
a. D’s contacts with state continuous and systematic or
isolated and sporadic?
b. Is the COA Related or Unrelated to D’s contacts in the
forum?
2. Consistent with fair play and substantial justice.
○
○
○
○
○
○
○
General Jurisdiction: Where a court has jurisdiction over you for everything.
■ Person: Where you live permanently
■ Company: Place of incorporation & HQ
Specific Jurisdiction: Where the court has jurisdiction over you based on
minimum contacts.
■ Contacts must be related to the cause of action for there to be jurisdiction.
Mcgee v. International Life Insurance: Life insurance customer moved from AZ to
CA. Insurance company stayed in touch with the customer, but had no other
clients in the state. When the customer died, Insurance company tried to contest
PJ in CA.
■ Takeaway: Continued correspondence and knowing he was in CA is
sufficient for Minimum Contacts.
Hanson v. Denkla: Trust of Mother who died. Set up in DE by resident of DE. No
party lived in FL at time. 2 daughters then moved to FL.
■ Trust company did not purposefully avail itself to FL PJ.
WW VW: Family bought VW car in NY and were driving it on their move to AZ.
Crashed and were injured in OK. Sued WW VW (distributor in tri-state area),
dealership, and VW of America for products liability.
■ Because WW VW did no business in OK, did not purposefully avail
themselves to OK, and just generally knew that P was going to use the
car outside of NY, minimum contacts were not met.
■ Mere knowledge that a product might be used in other states is not
sufficient for minimum contacts.
WW VW Test for Minimum Contacts
■ Nature of Defendant’s contacts with Forum
● Should D “reasonably anticipate being haled into court there?”
● Examples
○ Purposeful availment
○ Deliver products in “stream of commerce” with
expectations of contact
■ Reasonableness of Jurisdiction
● Burden on the defendant
● Forum State’s interest in dispute
● Plaintiff’s interest in convenient/effective relief
● Interstate judicial system’s interest in most efficient resolution
● Shared interest of the states in furthering fundamental,
substantive policies.
The “Effects” Test (Kulko, Calder)
■
○
○
Wrongful act committed outside forum state
● Or commercial activity
■ Causing negative effects in the forum state
■ D intentionally directed act at forum state
● Causing effect w/o purposeful availment isn’t sufficient
■ If exercising jurisdiction isn’t unreasonable.
■ (Cases):
● Calder: FL newspaper wrote intentional slander piece about
person in CA. Magazine sold throughout CA. (succeeded)
● Kulko: Mom bought ticket for daughter to secretly leave divorced
dad and fly back to live with her in CA from NY where dad was.
(failed)
“Contract-Plus” Test for Minimum Contacts (Burger King)
■ Contract with an out-of-state party alone cannot automatically establish
sufficient minimum contacts.
■ Factors:
● Prior negotiations
● Contemplated future consequences
● Terms of the contract
● Parties’ actual course of dealing
■ Case
● Burger King: Franchisee who owed money tried to contest PJ of
contract provision that all disputes be in FL. Franchisee had
bought products from FL, paid royalties to FL, took management
course in FL, negotiated contract in FL. Minimum contacts met.
“Stream of Commerce” Test (Asahi, WWVW, McIntyre)
■ PJ requires “an action purposefully directed toward the forum state.”
■ Mere placement in stream of commerce or an awareness that the stream
of commerce may sweep product into forum is insufficient.
■ Additional conduct is required
● Design product for market in forum state
● Advertising in forum state
● Channels for regular advice to customers in forum state
● Marketing through distributor to serve as agent in forum state.
■ Cases:
● Asahi: P hurt in motorcycle crash in CA sues manufacturer who
then sues Asahi, a parts manufacturer. Asahi manufactured a lot
of product, some of which made it to CA.
○ Asahi did not purposefully market/avail to the state. So no
min. Contacts.
○ Also, major burden on defendant, little state interest in the
suit between two foreign companies, etc.
●
●
McIntyre v. Nicastro: English company manufactured a machine.
Worked with distributor to “sell in US.” P in NJ injured by machine.
It was the only one that was ever sold in NJ.
○ No min. Contacts. Did not target NJ specifically, rather US
market as a whole.
○ Walden v. Fiore & The Effects Test
■ The relationship of contacts to the forum must arise out of contacts the
defendant himself creates within the forum.
■ Minimum contacts analysis looks to defendant’s contact with the forum
state, and rather than to contacts with the persons who reside there.
● Plaintiff cannot be the only link between the defendant and the
forum.
● Mere injury to a forum resident is not a sufficient contact - only
relevant insofar as it shows that D has formed a contact with the
state.
■ Case: Walden v. Fiore: Pro gamblers flying home from GA were stopped
and money confiscated. They filed suit at home against officer in Nevada.
Officer had no other connection to state besides the gamblers.
● No min. Contacts.
○ Bristol-Meyers Squibb: Class action filed in CA against BMS. Majority of plaintiffs
did not live in CA.
■ There was no connection between the COA for out of CA plaintiffs and
BMS. Would have been successful if only CA residents likely.
○ Ford Motor Co: P bought used ford Car in one state and lived in another.
Crashed and was injured.
■ Takeaway: Ford has minimum contacts through marketing, dealerships,
etc. in every state.
■ Overrode rule that COA must be related to contacts. Instead, valued
efficiency, reasonableness, fairness.
General Jurisdiction Analysis Checklist:
○ For person: Domicile / permanent state citizenship
○ For company: Incorporation / HQ (“nerve center”)
■ Long Arm Statute?
■ Test: Are affiliations/contacts with state so continuous and systematic as
to render the corporation “at home” in the forum state?
● State of incorporation
● Principal place of business
● Daimler:
○ Must be more than simply having an in-state subsidiary or
affiliate in the forum state
○ GJ calls for an appraisal of corporations activities in their
entirety; can’t be deemed “at home” in many states
● Reasonableness Factors?
●
Specific Jurisdiction Analysis Checklist:
○ Two Questions Re: Proper Authorization:
■ Is there statutory authorization for jurisdiction over the defendant?
(Usually long-arm statute)
■ Does jurisdiction satisfy constitutional requirements?
○ Does Assertion of PJ involve a non-resident defendant?
■ If so, specific jurisdiction analysis
○ For Specific Jurisdiction, are there minimum contacts?
■ Basic purposeful availment? (McGee, Hanson, WW, Kulko)
■ Contract-Plus? (Burger King)
■ Stream of Commerce? (Asahi, Nicastro)
■ Effects test? (Calder, Waldon)
○ Reasonableness factors under WW
● Long-Arm Statutes (2 types):
1. Extends to the Constitutional Limit—authorizes courts to exercise jurisdiction to
the constitutional limit. If this type of statute is involved (or if the State’s highest
court has interpreted their statute in this manner), no further statutory analysis is
required and you may proceed to the constitutional analysis beginning at Part C
below.
2. Depends on state statutes (all evaluated individually if this is the case)
● Other factors:
○ In-State Service (if a D was served within the state, jurisdiction is proper)
○ Voluntary Appearance
○ Consent
○ Minimum Contacts
○ Purposeful Availment
● General Jurisdiction over Out-of-State Businesses:
○ Court may exercise general jurisdiction over foreign corporations “when their
affiliations with the state are so “continuous and systematic” as to render them at
home.
○ Perkins: Principal, even if temporary place of business
○ Helicol: “mere purchases made in the forum state, even if occurring regularly, are
not enough to warrant a state’s general jurisdiction over a non-resident corp in a
cause of action not related to those transactions
CONSENT:
Express (ex. through contract or statute)
● M/S Bremen v. Zapata Off-Shore, 1972 (TOWT oil drilling rig, p. 171)
● Carnival v. Shute, 1991 (TOWT lady who slipped, p. 172)
● Kane v. New Jersey, 1916 (TOWT strict motorist statute, p. 88)
Implied
● General Appearance: appearing in court w/o special or limited appearance consents to
the jurisdiction of that court
● Through not having timely filed a motion to dismiss for lack of personal jurisdiction
● Conduct (ex. through behavior as detailed in a statute)
o Hess v. Pawloski, 1927 (TOWT motorist statute, p. 88)
●
●
●
Interpreting/Enforcing Forum Selection Clauses:
○ Prima Facie valid and enforced unless enforcement shown by resisting party to
be unreasonable under circumstances (Breman)
○ Subject to judicial scrutiny for “fundamental fairness” (Carnival Cruise)
Internet/Technology Contacts:
○ Inset Systems:
■ Website advertising sufficient for purposeful availment even when not
directed at any particular state
■ BUT see Bensusan, p. 125
○ Zippo’s sliding scale - interactivity:
■ “Active” through website enters into contracts with forum residents
involving knowing/repeated transmission of computer files over internet
■ “Passive” websites where information is simply posted and accessible to
users in foreign jurisdictions
■ “Middle Ground” interactive websites where user exchanges information
with host computer
● Look to level of interactivity and commercial nature of information
exchange that occurs writ
Jurisdiction Based on Property:
○ In Rem:
■ Power of court to enter judgment regarding property
■ Binding on the whole world
■ “Pure” in rem
○ Quasi-in Rem
■ Adjudicate rights in property
■ Limited to particular persons
■ Limited to value of property
● QIR 1:
○ Property is the source of the dispute
● QIR 2:
○ Claims are unrelated to the property
○ Asserting Court’s power over property:
■ What is property?
● Pennington: state jurisdiction over property within its borders
includes both tangible and intangible property.
■ Attachment: tangible property like land
■ Garnishment, sequestration: intangible property like wages/debt
PJ Checklist
Rules 4(k) 12(b), 12(h), 12(k)
A. Federal or State Court? If the case is in state court, the limits on state court jurisdiction apply.
Proceed to Part B of this checklist. If the case is in federal court, Rule 4(k) and Rule 12 must be
consulted.
1. Possible Waiver? Consult Rule 12—FRCP Rule 12 requires defendants to raise any
challenge to personal jurisdiction in their initial response or the challenge is waived. Thus, it is critical
at this point to determine whether the defendant has waived a personal jurisdiction challenge by
failing to raise it initially. If so, personal jurisdiction is appropriate.
2. Rule 4(k)—does the general rule of 4(k)(1)(A) apply or is there an alternate applicable
provision for establishing jurisdiction? If one of the alternate provisions applies, then compliance with
4(k)(1)(A)—which incorporates states’ standards of personal jurisdiction—will be unnecessary.
Possible options under Rule 4(k) to consider:
a. 100-Mile Bulge Rule—is the party one that was joined under Rule 14 (third-party
defendant) or Rule 19 (necessary party) and served within a judicial district not more than
100 miles from the courthouse where the action is pending? If so, jurisdiction can be
established under Rule 4(k)(1)(B). If not, proceed to the next question.
b. Federal Statutory Provision—is there a federal statute involved here that has its
own service provisions (such as nationwide service of process), compliance with which
would establish personal jurisdiction? If so, jurisdiction can be established under Rule
4(k)(1)(C) by complying with the special service provision. If not, proceed to the next
question.
c. Federal Claim Outside of State-Court Jurisdiction—is this a claim arising under
federal law against a person not subject to personal jurisdiction in any state? If so, service
will render the defendant subject to personal jurisdiction if it is constitutional under the Fifth
Amendment (Rule 4(k)(2)). Proceed to the constitutional analysis below in Part C but analyze
minimum contacts with reference to the United States as a whole rather than a particular
State.
d. Rule 4(k)(1)(A)—if none of these alternative provisions of Rule 4(k) apply, you will
have to follow Rule 4(k)(1)(A), which requires you to determine whether the defendant could
be subjected to the jurisdiction of a court of general jurisdiction (i.e., a trial court of record) in
the state in which the federal district court is located. Refer to the analysis beginning at Part
B of this checklist to make this determination.
B. Long-Arm Statute—does the state’s long-arm statute or other jurisdictional statute authorize
personal jurisdiction under these facts?
1. Type of Long-Arm Statute—what type of long-arm statute does the forum state have?
a. Extends to the Constitutional Limit—authorizes courts to exercise jurisdiction to
the constitutional limit. If this type of statute is involved (or if the State’s highest court has
interpreted their statute in this manner), no further statutory analysis is required and you may
proceed to the constitutional analysis beginning at Part C below.
b. Enumerated Act Model—specifically articulates factual circumstances where
courts can exercise personal jurisdiction. If this type of statute is involved, proceed to the
next question.
2. Statutory Analysis—do the facts presented fall within one of the categories articulated
in the long-arm statute?
a. Yes. If the facts fall within the long-arm statute, proceed to the constitutional
analysis of Part C.
b. No. If the facts do not fall within the long-arm statute, then personal jurisdiction
cannot be exercised over the party. Your analysis ends here.
C. Constitutional Analysis—does the assertion of jurisdiction satisfy the requirements of due
process?
1. Traditional Bases for Personal Jurisdiction—is one of the traditional bases for
personal jurisdiction applicable? If so, personal jurisdiction is constitutional. If not, proceed with the
International Shoe analysis of Part C.3.
a. In-State Service of Process—was the defendant an individual real person served
with process within the state? If so, jurisdiction is proper. Burnham v. Superior Court, 495
U.S. 604, 619 (1990).65
b. Voluntary Appearance—has the defendant voluntarily appeared and proceeded
to defend itself in the action without challenging personal jurisdiction? If so, personal
jurisdiction over the defendant will be constitutional because the challenge has been waived.
c. Consent—did the defendant expressly consent to jurisdiction in the state, for
example, through an applicable and reasonable forum-selection clause? See Carnival Cruise
Lines, Inc. v. Shute, 499 U.S. 585, 594–95 (1991) (holding that forum-selection clauses are
generally enforceable).
d. Non-Resident Plaintiffs—is the party challenging personal jurisdiction the original
plaintiff in the action? If so, that party has already consented to jurisdiction by choosing to
bring the action in the forum. Adam v. Saenger, 303 U.S. 59, 67–68 (1938).
2. International Shoe Test—if none of the traditional bases for personal jurisdiction applies,
then you must ask, does the assertion of jurisdiction satisfy the standard of International Shoe?66
a. Related or Unrelated Contacts? Are the defendant’s forum-state contacts related
or unrelated to the lawsuit?
i. If the forum-state contacts are related to or give rise to the claim being
asserted against the defendant, this is a specific jurisdiction fact pattern. Proceed to
the specific jurisdiction analysis in Part C.3 below.
ii. If the forum-state contacts are unrelated to the lawsuit, proceed to the next
question.
b. General Jurisdiction—can the defendant be considered “at home” in the forum
state based on the contacts it has there? Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915 (2011).
i. Forum State Citizens—individual real persons domiciled in the forum state
will be considered “at home” in that state and thus subject to general jurisdiction
there. Milliken v. Meyer, 311 U.S. 457, 462 (1940) (“Domicile in the state is alone
sufficient to bring an absent defendant within the reach of the state’s jurisdiction for
purposes of a personal judgment by means of appropriate substituted service.”).
ii. Corporations/Entities—entities are considered “at home” and thus
subject to general jurisdiction in the states where they are organized or incorporated
and where they have their principal place of business (i.e., headquarters).Daimler AG
v. Bauman, 571 U.S. 117, 137 (2014) (“With respect to a corporation, the place of
incorporation and principal place of business are paradigm bases for general
jurisdiction.”). Under “extraordinary circumstances” other contacts may subject an
entity to general jurisdiction, but this should be regarded as an extremely narrow
allowance. See, e.g., Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447–48
(1952) (corporate headquarters-level activity in the forum state sufficient); see also
BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1559 (2017) (extensive in-state railroad
operations insufficient).
iii. If the defendant cannot be considered “at home” in the forum state and
there otherwise are no related forum-state contacts, then personal jurisdiction would
be unconstitutional.
3. Specific Jurisdiction Analysis—can specific jurisdiction be exercised over the
defendant? The answer depends on a two-pronged analysis of minimum contacts and
reasonableness:
a. Minimum Contacts—are there minimum contacts between the defendant and the
forum state? Below are various ways in which one might find minimum contacts to be
present. If minimum contacts are found, proceed to the reasonableness analysis of Part
C.3.b below.
i. Purposeful Availment—has the defendant purposefully availed itself of
the privilege of acting within the forum state such that it has received benefits and
protections of the state? Hanson v. Denckla, 357 U.S. 235, 253 (1958). If so, the
minimum contacts requirement is satisfied. Proceed with the reasonableness
analysis of Part C.3.b below.
●
●
This requirement assures that the defendant will be able to
reasonably anticipate where its conduct will subject it to personal
jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980).
Purposeful availment cannot exist on the basis of the unilateral
actions of someone other than the defendant. Hanson, 357 U.S. at
253.
ii. Intentional Torts—if an intentional tort has been alleged (such as
defamation, conversion, intentional infliction of emotional distress, tortious
interference, etc.), has the defendant intentionally targeted its tortious conduct at a
forum resident and caused the brunt of harm to that resident in the forum? If so, then
personal jurisdiction over the defendant in the forum state may be appropriate under
the Calder “effects” test. Calder v. Jones, 465 U.S. 783, 789 (1984).
iii. Contractual Contact—does the defendant have a contractual relationship
with a forum resident? If so, use the contracts-plus analysis (i.e., consideration of the
place of negotiation, execution, and performance of the contract; choice-of-law
provision) to consider whether the contract solicitation, negotiation, and course of
conduct support finding of purposeful availment. Burger King Corp. v. Rudzewicz,
471 U.S. 462, 24479–80 (1985); see also McGee v. Int’l Life Ins. Co., 355 U.S. 220,
223–24 (1957). If purposeful availment is found, proceed with the reasonableness
analysis of Part C.3.b below.
iv. Stream-of-Commerce Cases—if this is a stream-of-commerce case—
meaning that a product of the defendant has caused harm to the plaintiff only after
entering the forum state via a third-party intermediary—the court has not clarified
what a defendant must have done to have purposefully availed itself of the forum. J.
McIntyre Mach. v. Nicastro, 564 U.S. 873 (2011), suggests that something more than
mere awareness of a sale in the forum state is required but no majority spoke clearly
on this point. The circuits have been split on this issue. However, if there is evidence
that the defendant intended to serve the forum market, that will suffice to establish
purposeful availment.
v. In Rem&Quasi In Rem Cases—is jurisdiction being asserted based on
property located within the state? If so, you must still analyze the in-state property as
you would any other contacts. If the property is completely unrelated to the lawsuit, it
cannot provide the basis for a constitutional assertion of personal jurisdiction. Shaffer
v. Heitner, 433 U.S. 186, 212 (1977) (ownership of stock in a forum-state company
insufficient to support jurisdiction).
vi. Internet Cases—is this a case in which the forum-state contacts are
through the Internet? If so, analyze whether the Internet contacts show purposeful
availment. If purposeful availment is found, proceed with the reasonableness
analysis of Part C.3.b below.
●
●
●
Express Aiming of Internet Activity—most circuits evaluate
Internet-mediated contacts by asking whether the Internet activity
was specifically aimed at the forum state. If so, then the contact may
be sufficient to establish purposeful availment if it gave rise to the
cause of action. If not, see if there are forum contacts that can be
evaluated under one of the other purposeful availment rubrics.
The Zippo Approach—some jurisdictions may still be influenced by
the approach of Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp.
1119 (W.D. Pa. 1997), which classifies websites as passive,
interactive, or active, finding personal jurisdiction to be appropriate in
the latter category and potentially appropriate in the interactive
category.
Analyze All Contacts—it is best to take a holistic approach,
identifying all of the contacts that a defendant has with a forum
state—such as forum state solicitation, product distribution, or
intentional tortious conduct—and analyzing them for purposeful
availment without giving too much weight to the fact that these
contacts may have been mediated through the Internet.
b. Reasonableness—if your analysis has indicated that the defendant has
purposefully established minimum contacts with the forum state, then ask: Would the
exercise of jurisdiction be unreasonable? Analyze with reference to the following five factors
applied in Asahi, noting that a balancing of the first three of these factors is typically
determinative. The balancing of these interests is a somewhat subjective exercise that
depends on the facts.
i. Burden on the Defendant—would the inconvenience to the defendant be
constitutionally burdensome, meaning it would impact the defendant’s ability to
mount a defense? A yes answer would weigh against reasonableness.
ii. State Interest—does the forum state have a strong interest in resolving
the dispute? The state’s interest is greater when its laws or policies are at stake, or
when state citizens or state-based corporations are involved as plaintiffs (such
parties as defendants would be subject to general jurisdiction). An affirmative answer
here weighs in favor of reasonableness.
iii. Plaintiff’s Interest—does the plaintiff have a strong interest in obtaining
relief in the forum state? For example, is the plaintiff from the forum state or is the
forum state a place where the plaintiff is able to obtain the relief it seeks? If so, that is
a factor favoring reasonableness.
iv. Systemic Efficiency—would jurisdiction promote the interstate judicial
system’s interest in efficient resolution of controversies? For example, would the
case be most efficiently tried in the forum state because the witnesses and/or
evidence are located there?
v. Interests of the Several States—are there other states whose
substantive policy interests are more at stake in the case?
Notice & Opportunity to be Heard
FRCP 4
Defendant has a right to adequate notice and an opportunity to be heard
NOTICE:
Notice must (1) include adequate information, (2) allow reasonable time to appear given the
circumstances, (3) “be such as one desirous of actually informing the [party] might reasonably
adopt”
Requirement of Reasonable Notice
Notice must be “reasonably calculated to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections.”
● Mullane v. Central Hanover Bank & Trust Co., 1950 TOWT NY Common Trust Fund &
notice by publication, p. 231
● Service by Publication, last resort option after Mullane. Could be acceptable for in rem or
quasi in rem actions.
Sliding Scale for Reasonable Notice
●
●
●
●
●
●
Very fact-specific
If you know whereabouts of the party (Higher expectation)
If the notice through mail is returned, another attempt generally required
If you post on someone’s apartment door, it could be removed, another means generally
required
If some methods to give notice are more expensive, time consuming, or burdensome
they will not be required over more reasonable means.
Actual notice is not required, and may not always “save the day”
o Court held constitutionally deficient procedure for notice through the statute could
not be overcome by the fact that actual notice was received by party.
The Mechanics of Giving Notice
FRCP 4(d): Waiving Service
● Service by mail provision modified to an action commences when the plaintiff sends a
form entitled: “Notice of a Lawsuit and Request to Waive Service of a Summons” or a
similar document, by mail or some other “reliable” means. Domestic defendants have
30 days from the date on which the waiver was sent to return the waiver; otherwise they
will be charged with the costs associated with providing formal service.
FRCP 4 Summons (Supplement p. 11)
4(e)(2) Serving an Individual within U.S.
● Personal service
● Leaving a copy at the individual’s dwelling or usual place of abode with someone of
suitable age and secretion who resides there(Can be an older teen in some cases,
doesn’t HAVE to be adult) (National Development TWOT arabian wealthy man with 12
homes); or
● Copy to an agent authorized by appointment or by law to receive service of process
FRCP 4(f): Serving an Individual in a Foreign Country:
● Authorizes alternative methods by which an individual may be served outside the US.
● Affords US attorneys a flexible framework that accommodates the widely divergent
procedures for service of process.
● Avoids both violating the sovereignty of other countries and maximizes the likelihood that
judgment rendered in an action in the country be recognized and enforced abroad.
4(h)(1)(B) Serving a Corporation, Partnership, or Association
● By delivering copy of summons to an officer, managing or general agent, or any other
agent authorized by appointment or by law to receive service of process. If statute
requires, also mailing.
● Contracts may appoint an agent authorized to receive service of process
o Some courts have held that the agent for a corporation doesn’t necessarily need
to be specially authorized to receive service, just so integrated that they should
know what to do with a summons.
Return of Service- required to prevent “sewer service” in which a process server does not make
a good faith effort to render service. Must file return of service with the court. (Mierdreich)
Statutes of Limitations- in Federal Court filing a complaint tolls the statute of limitations and you
have 90 days afterwards to serve process
Immunity from Service- at the state level, a party within the state for another court proceeding
cannot be served while there.
Etiquette of Service- courts can quash service if obtained fraudulently
Service of Process must occur within 90 days of the complaint being filed.
OPPORTUNITY TO BE HEARD:
Defendant has an adequate opportunity to be heard when, in light of interests at stake in the
litigation, defendant is able to develop the facts and legal issues in the case and present that
party’s position to the court.
Based on: Sniadach v. Family Finance Corp. of Bay View, 1820 TOWT pre-trial wage
garnishment to repay debts, p. 251
Opportunity to be heard must be given at a “meaningful time and in a meaningful
manner” to prevent against wrongful deprivation of significant property interest
Considerations:
(1) Who is making the decision?(judge/clerk)
(2) What pre-existing interest does the party seeking relief have in the property?
(3) When does the seizure occur and when are the opportunities for hearings?
(4) Why the immediate need to seize property? Is there a security interest?
(5) How many steps and levels of proof does the party seeking relief need to go through
to be authorized to seize property?
Three-part standard for determining the validity of pre-deprivation procedures
Connecticut v. Doehr, 1991 TOWT bar fight and pre-judgment attachment of a home, p. 257;
adopting test from Mathews v. Eldridge, 1976
(1) Courts should consider the nature of the property interest at stake and evaluate
private interest that will be affected by the prejudgment measure
Even temporary deprivations warrant due process
(2) Courts should examine risk of erroneous deprivation through the procedures and the
value of additional safeguards.
Plaintiff could make showing of entitlement, post a bond, a judge could be involved in the
decision-making
(3) Courts should consider the interest of the party seeking prejudgment remedy and any
interest of the government.
Notice and the Opportunity to Be Heard Checklist
A. Notice—was adequate notice given to the defendant? Was “notice reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections”? Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950). To make this determination, consider the following questions:
1. Adequate Information—does the notice convey sufficient information to notify the party
of how and by when it should respond?
a. Yes. If so, proceed to the next question.
b. No. If not, the notice is inadequate.
2. Timeliness—does the notice allow reasonable time to appear under the circumstances?
a. Yes. If so, proceed to the next question.
b. No. If not, the notice is inadequate.
3. Method—is the method of giving notice a method that “one desirous of actually informing
the [party] might reasonably adopt” to achieve actual notice? To answer this question, ask, Was the
most reasonable means available under the circumstances employed?
a. No. If there is a better means that is available and reasonably practical under the
circumstances, then it should be employed. This includes follow-up attempts to provide
notice after discovering that notice has failed. See Jones v. Flowers, 547 U.S. 220, 225
(2006).
b. Yes. Where a superior method exists but is too expensive, time consuming, or
burdensome, then it need not be employed over more practical methods under Mullane. The
notice given to the defendant was adequate.
B. Opportunity to Be Heard—does the pre-deprivation hearing comport with the constitutional
requirements of due process? Apply the three-pronged test of Connecticut v. Doehr, 501 U.S. 1
(1991):
1. Property Interest at Stake—what is the nature of the private interest that will be affected
by the deprivation? This question focuses on what kind of property is at stake—is it a house, a car,
vacant land, or a television? So long as the property interest is not so minor as to be insignificant, it
will be a protectable interest under the Due Process Clause. Further, property interests that are of
vital importance to the defendant, such as housing or wages, will warrant greater pre-deprivation
protections given their connection with the defendant’s basic needs.
2. Risk of Erroneous Deprivation—what is the risk that the defendant will be wrongfully
deprived of its property? The following are considerations that aid in, but are not completely
determinative of, the resolution of this issue:
a. Showing—what type of showing does the plaintiff have to make? The more that a
plaintiff has to show to support his or her claim, the lower the risk of erroneous deprivation.
b. Bond—is there a bond requirement? A bond requirement will tend to ensure that
only plaintiffs with plausible claims will seek the property. The higher the bond requirement,
the more likely the plaintiff’s claim is to be non-frivolous, thus reducing the risk of erroneous
deprivation.
c. Judge—is the decision made by a judge or a non-judicial court official such as a
clerk? If a judge is involved in the decision, there is a better chance that the defendant will
not be wrongfully deprived of its property.
3. Plaintiff’s Interest—what is the interest of the party seeking the prejudgment remedy
and if relevant, any ancillary interest of the government? Does that party have a pre-existing interest
in the property or a speculative interest? When the plaintiff’s interest is preexisting or not speculative
there is less of a chance that the deprivation will be erroneous.
4. Your Analysis—there are no across-the-board requirements here; you have to
determine whether the protections that are in place provide the defendant with adequate protection
given the nature of the defendant’s property interest at stake and the strength of the plaintiff’s
alleged interest in the property. It is a balancing approach that requires a careful fact-specific
analysis.
Subject Matter Jurisdiction (Yellow)
●
●
●
SMJ in State Courts:
○ Governed by state constitutions and statutes
○ States generally have plenary power over all categories of cases
○ States generally free to hear federal claims unless Congress has conferred
exclusive SMJ in federal courts=concurrent jurisdiction
SMJ in Federal Courts:
○ Courts of limited jurisdiction
○ Article III creates/confers constitutional power; statutes authorize use of that
power.
○ Parties cannot waive SMJ (as opposed to PJ)
○ Defect in SMJ raised at any time; court can raise sua sponte(at any point, court
will then have to immediately cease with that case)
Forum Shopping:
○ Does the state court have SMJ?
○ Does the federal court have SMJ?
○
○
If both are available, reasons to prefer one or the other?
Does the defendant have a basis for overruling the choice?
● Diversity Jurisdiction:
○
○
○
●
●
Article III and 28USC 1332
Amount in Controversy must exceed $75k
Suit between citizens of different states
■ Requirement of complete diversity (Strawbridge v. Curtis)
○ Policy Debates
○ The meaning of citizenship
■ Dred Scott: Must be a citizen of the United States and a citizen of a
particular state
Citizenship takeaways:
○ Must be complete diversity
■ But see Section 1332(d) on class actions (based on citizenship of named
representatives of class)
○ Citizenship is determined at time the complaint is filed
■ Unaffected by subsequent changes
○ Plaintiff bears burden of pleading diversity and proving diversity
○ Citizenship for individuals is based on domicile, not residence
■ Domicile test from Mas:
● Residence AND
● The intent to remain there
■ Old Domicile remains until a new one is established (Transit Rule)
■ Only one at a time
○ Corporate Citizenship
■ In state of incorporation
■ In principal place of business: nerve center test (Hertz Corp)
○ Unincorporated Associations
■ Citizenship of Each Partner
○ No collusion to create diversity (Section 1359)
■ And no collusion to defeat diversity (Rose)
● Court won’t consider formal or nominal parties
Amount in Controversy Takeaways:
○ Test for determining whether P meets amount is based on P’s good faith, and
whether it can be shown to a legal certainty that the claim didn’t meet amount.
■ Look to circumstances at time claim is filed.
■ Post filing events may be relevant to bad faith.
○ Damages include claims for compensatory damages, punitive damages, and
value of injunctive relief
■ Excludes claims for costs and interests
○ P must be given appropriate and reasonable opportunity to show good faith
belief
○
●
●
Valuing Injunctive Relief:
■ Value to plaintiff
■ Higher number between value to P vs. cost to D to comply
○ Aggregating claims to satisfy AIC
■ Single P can aggregate claims against single D
■ Multiple P’s cannot aggregate claims if they’re separate and distinct,
but can aggregate claims if claim flows from single, indivisible harm
(rule 20) One must still meet AIC threshold, others can join for less.
■ P cannot aggregate claims against multiple Ds unless liability is
common and undivided.
■ Even if same P and D, with a counterclaim, both P’s complaints must
cross AIC threshold, unless same cause of action.
Exceptions to Diversity Jurisdiction:
○ Domestic Relations Exception (Ankenbrandt)
○ Probate Exception (Marshall)
Diversity Jurisdiction Reqs:
o 28 U.S.C. § 1332
▪ Federal courts have jurisdiction over cases where the amount in
controversy exceeds $75,000; AND
▪ Between citizens of different states;
▪ Between citizens of a state and of a foreign state;
▪ Between citizens of different states and citizens of foreign states are a
party; OR
▪ Between a foreign state as a plaintiff and a citizen of a state.
Federal Question Jurisdiction:
28 U.S.C. § 1331
Article III Section 2
Article 3 III Section 2: “all cases, in law and equity, arising under this Constitution, the laws of
the United States, and treaties made, or which shall be made, under their authority.”
28 USC Section 1331: “The District Courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States”
3 approaches to “Arising Under” Jurisdiction:
1. Justice Holmes’s “creation test”
a. SMJ when a federal law or statute creates the cause of action.
2. Does the complaint disclose a need for determining the meaning or application of federal
law?
3. Claim for remedy created by federal law, or a case in which a distinctive policy of federal
law requires that federal principles control the disposition of the claim?
Grants subject matter jurisdiction to claims “arising under federal law”
● Arising under has a narrow interpretation (narrower than Article III, Section 2 of the
Constitution)
● Must have an essential federal element which means either:
●
●
(1) The right is created by federal law OR
o Private rights of action, courts can imply federal causes of action, ex. Violations
of constitutional rights
(2) The state-based claim depends on the application of federal law (High standard to
reach)
o State-based claims must be important to the federal system as a whole,
substantial federal interest
▪ Grable Test: Does the claim (1) necessarily raise a stated federal issue
that is (2) actually disputed and (3) substantial (4) which a federal
forum may entertain without disturbing the balance of federal and
state responsibilities. Grable & Sons Metal Products, Inc. v. Darue
Engineering & Manufacturing, 2005 (pg. 312)
▪ Tries to avoid “opening the flood gates” Ex. Gunn v. Minton, 2013 (TOWT
legal malpractice case that hinged on federal patent infringement, court
said because federal question would be purely hypothetical and the
concern for opening the federal courts to legal malpractice claims no
federal question jurisdiction, pg. 317)
o Not enough to just involve a federal matter, federal question must be central to
the complaint
▪ Merrell Dow Pharmaceuticals v. Thompson, 1986 (TOWT case involving
federal product labeling standards that was really a tort case and federal
question was not substantial, pg. 310)
Determined by the “well-pleaded complaint rule”
● Look only at the face of the plaintiff’s complaint and focus on the claim itself
● Defenses and counterclaims by defendant will not meet this requirement
o Louisville & Nashville Railroad Co. v. Mottley, 1908 (TOWT lifetime railroad
passes, pg. 301)
*Note that citizenship of the parties is irrelevant and there is no amount in controversy
Mottley’s Well-Pleaded Complaint Rule:
●
Arising Under Jurisdiction Summary:
○ Federal Issue must still be part of the well-pleaded complaint, not an affirmative
defense or counterclaim; no artful pleading
○ Satisfies either the creation test, or
○ “Special and small category of cases” in which state law claim “arise under”
federal law
■ Federal Issue must be necessary raised by the state law claim
■ Federal Issue must be actually disputed
■ Federal issue must be substantial
■ No SMJ if it causes federalism concerns or if ground-swell of factspecific state-law claims will be channeled into federal courts.
●
What is it?
○ Permits a federal court to entertain and rule on claims/causes of action that do
not satisfy an independent basis for federal SMJ, i.e. diversity or federal question
○ Constitutionally: Osborne’s “Ingredient Test”
Supplemental Jurisdiction
○
○
Doctrinally: Preclusion Doctrine
Politics/Policy: Federalism, separation of powers
28 U.S.C. § 1367
District courts have supplemental jurisdiction over all other claims that are so related to claims in
the action that they form part of the same case or controversy under Article III of the
Constitution.
Courts interpret § 1367(a) to mean the claim must meet the Gibbs test, “Common nucleus of
operative facts”
● Originally stated in United Mine Workers of America v. Gibbs, 1966 (TOWT series of
boycotts, pg. 322)
● Always met if the claims arise from the same transaction or occurrence
● Common Nucleus applies to both claims and parties
● Not limited to claims by the plaintiff; includes claims asserted by other parties.
§ 1367(b) Takes away supplemental jurisdiction in Diversity of Citizenship cases if… (Does not
apply to Federal Question cases)
● Only over certain claims by the plaintiff, but never defendant
● That include:
o Claims by plaintiffs against persons joined under FRCP 14, 19, 20, and 24
(defendants)
▪ 14: third party-practice/impleader
▪ 19: Mandatory Joinder
▪ 20: Permissive Joinder of Multiple Plaintiffs & Defendants
▪ 24: Intervention
o Claims by FRCP 19 persons proposed to be joined as plaintiffs
o Claims by FRCP 24 seeking to intervene as plaintiffs
o These claims would need an independent basis for SMJ
● §1367(c) Circumstances under which supplemental jurisdiction should not be exercised
o (1) Claim raises a novel or complex issue of state law
o (2) Claim substantially predominates over the claim or claims over which court
has original jurisdiction
o (3) Court has dismissed all claims over which it has original jurisdiction
o (4) Exceptional circumstances, other compelling reasons (Most jurisdictions read
this in light of 1-3)
o Court should state why they dismiss claims under this section. See Executive
Software North America, Inc. v. United States District Court for the Central
District of California, 1994 (pg. 342)
Supplemental jurisdiction is a doctrine of discretion, so even if a claim meets the Gibbs test
a court does not have to hear the claim. Which a court may decide to do in the interest of:
judicial economy, convenience, and fairness to litigants.
● Cannot be used to bring in other parties to a suit that would otherwise not have been
able to be sued. Ex. Aldinger v. Howard (TOWT civil rights action where a county could
not be sued in federal court)
Every single claim in a federal court must have federal subject matter jurisdiction
What happens if the federal claim is dismissed?
● If early dismissal, maybe in court’s interest to dismiss
● If late dismissal (ex. after submitting issue to jury) then either retaining or dismissing may
be in the court’s interest
The Constitutional Test: Gibbs
● Federal SMJ whenever there is a claim “arising under” federal law under Article III and
relationship between federal and state claims “permits the conclusion that the entire
action before the court comprises on constitutional “case.”
○ State and federal claims must derive from “common nucleus of operative fact”
○ “Plaintiff’s claims are such that he would ordinarily be expected to try them all in
one judicial proceeding”
● Discretionary SMJ
○ Federal claims dismissed before trial?
○ State law claims predominate on proof, scope of issues, remedy?
○ Jury confusion?
● SMJ determined at outset of litigation
○ But propriety of SMJ remains throughout litigation
● P v. D (1331 claim) & (state law claim, no diversity)
Notes:
● Section 1367(b) and Amount in controversy (Allapatah): “When the well-pleaded
complaint contains at least one claim that satisfies the amount-in-controversy
requirement, and there are no other relevant jurisdiction defects, the district court has
original jurisdiction over that claim.” 1367(b) does not withdraw supplemental
jurisdiction over claims made by plaintiffs pursuant to Rules 20&23.
Analyzing Supplemental Jurisdiction:
● Does court have original SMJ over all claims?
● If not, does court have supplemental jurisdiction?
○ Does Court have Article III power to exercise it?(Gibbs)
○ Does court have statutory power to exercise it?
■ Does it satisfy 1367(a)?
■ Does 1367(b) apply?
■ Are there factors suggestion the court should decline to exercise
jurisdiction under 1367(c)?
○ If no supplemental jurisdiction, court either dismisses without prejudice, or
remands supplemental claims to state court
○ Note 1367(d)
■ Tolling SOL or “grace” period after dismissal to allow filing dismissed
claims in state court.
Removal Jurisdiction
Gives the defendant the choice to remove a claim originally filed in state court to federal court.
28 U.S.C. § 1441, 1446 (Procedure for removal), 1447 (Procedure after removal)
● Defendant can remove if the case could have been brought in federal court under
original jurisdiction
o Removal can only be based on the plaintiff’s claims
o Counterclaims introducing a federal issue do not apply
o Claims that could have been brought in with supplemental jurisdiction can also
be removed
● Cannot remove a diversity case if any party is a citizen of the forum
●
●
●
●
●
●
●
●
●
●
●
●
●
Must remove within 30 days of service of process or 30 days from the point when the
suit becomes removal (i.e. a nondiverse defendant was dismissed)
If case has been in state court for a year or more, no longer able to remove
All defendants who have been served with process must join in the removal
The 30 days for removal start over for each newly served defendant
Right of removal is waived if defendant’s action in the state court are inconsistent with
the defendant’s view that the case should be removed
No permission needed, defendant can just do it.
Plaintiff can never remove.
Plaintiff can challenge and move to remand back to state court.
Only goes from state to federal
You remove only to the federal district that embraces the state court where the case was
filed
o Special VENUE provision.
Plaintiff is master of complaint, except:
o Artful pleading n.2 251
o Fraudulent joinder n.5 251
o Failure to state AIC 1446(c)(3)(b)
The Process for Removal:
o File notice of removal w/ federal court - 1446(a)
o What triggers the timeline for removal? - 1446(b)(1)
o Timeline for removal - 1446(b)
▪ 30 days after receipt of the complaint, or
▪ 30 days after receipt of an amended complaint that includes claims that
are removable - 1446(b)(3)
▪ 30 days after later-served D (Earlier Ds can join) - 1446(b)(2)(c)
▪ Diversity: must remove within 1 year of the commencement of the action
unless P has acted in bad faith - 1446(c)(1)
o Notice to other parties - 1446(d)
▪ “shall have the effect of removal and the State court shall proceed no
further”
o Derivative Removal Jurisdiction - 1441(f)
Removal Jurisdiction Takeaways:
o Only defendants - 1441(a) (Shamrock)
o Only when action could have originally been brought in federal court
▪ Basic rules for federal SMJ apply - Mottley’s well-pleaded complaint rule,
diversity of citizenship, AIC, federal questions, supplemental jurisdiction
o Citizenship of defendants - 1441(b)(2)
▪ Irrelevant for federal question removal
▪ Relevant for diversity removal - no D citizen of state in which suit is
brought
o All defendants must agree - 1446(b)(2)(a)
o Jurisdiction over state-law claims?
Subject Matter Jurisdiction Checklist:
A. Original Federal Court Jurisdiction—is there original jurisdiction over the claim?
1. Diversity Jurisdiction—does the action satisfy the requirements of 28 U.S.C. § 1332
such that the court may hear the case on the basis of diversity?
a. Citizenship of the Parties—what is the citizenship of each of the parties in the
action?
i. Individuals—citizenship for individuals is determined based on their
domicile; to establish domicile a person must be physically present in a place and
have the intention to remain there for an indefinite period of time.
ii. Corporations—for a corporation, citizenship is based on its place or
places of incorporation and the place where its principal place of business
(headquarters) is located. 28 U.S.C. § 1332(c)(1); Hertz Corp. v. Friend, 559 U.S. 77,
97 (2010).
iii. Partnerships & Unincorporated Entities—partnerships and
unincorporated entities are citizens of every state and foreign country of which its
partners or members are citizens. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84 n.1
(2005).
iv. Legal Representatives—legal representatives are deemed to be citizens
only of the state of the party whom they represent. 28 U.S.C. § 1332(c)(2). However,
in class actions, citizenship is determined by the citizenship of the class
representatives. Devlin v. Scardelletti, 536 U.S. 1, 10 (2002).
b. Diverse Parties—are the parties diverse in one of the ways identified in §
1332(a)?
i. Between Citizens of Different States? Are the adverse parties citizens of
different states (the District of Columbia, Puerto Rico, and U.S. Territories are treated
as states under § 1332)? If so, the parties are diverse; proceed to Part A.1.c.
ii. Between a Citizen of a State and an Alien? Does the case involve a
state citizen versus an alien (remember that permanent resident aliens are treated as
state citizens for purposes of destroying diversity)? If so, the parties are diverse;
proceed to Part A.1.c.
iii. Between State Citizens with Aliens as Additional Parties? Does the
case involve citizens of different states with aliens as additional parties on either or
both sides (remember that permanent resident aliens are treated as state citizens for
purposes of destroying diversity)? If so, the parties are diverse; proceed to Part
A.1.c.
iv. Foreign State as Plaintiff? Does the case involve a foreign state as a
plaintiff versus a citizen of a state? If so, the parties are diverse; proceed to Part
A.1.c.
v. Not Permissible—alien v. alien; state citizen + alien v. alien; alien v. alien
+ state citizen; state citizen v. permanent resident alien from same state; state citizen
v. U.S. citizen domiciled abroad; state citizen v. non-U.S. citizen who is not a citizen
of any country. Aliens are not permitted to be on both sides of the “v” unless they
each have U.S. state citizen coparties on both sides.
c. Complete Diversity—are all of the parties on one side of the action diverse from
all of the parties on the other side of the action? [Note: Aliens can be from the same country;
a U.S. citizen domiciled abroad on either side will destroy complete diversity.] Strawbridge v.
Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806). Look at all of the parties at once to make this
determination; do not analyze complete diversity on a claim-by-claim or party-by-party basis.
i. Yes. If so, then complete diversity as is required exists.
ii. No. If not, there is not complete diversity and there can be no diversity
jurisdiction over the claim.
d. Collusive Joinder—is there evidence that a party has been improperly or
collusively named simply for the purpose of creating a basis for diversity jurisdiction? If so,
the citizenship of the collusively or improperly named party may be ignored for diversity
purposes. 28 U.S.C. § 1359.
e. Amount in Controversy—is the claim for more than $75,000? 28 U.S.C. §
1332(a). If so, and the diversity of citizenship requirement has been satisfied, then diversity
jurisdiction exists. Consult the following questions in determining the amount in controversy:
i. Punitive Damages Included—are there punitive damages that can be
included and added to reach the jurisdictional amount? Such damages must be
permissible under the relevant governing law to include them.
ii. Costs and Prejudgment Interest Excluded—are there costs and
prejudgment interest that need to be excluded before evaluating whether the amount
in controversy is satisfied? Contract interest may be included.
iii. Aggregation—can the plaintiff’s claims be aggregated to satisfy the
amount-in-controversy requirement? A claimant may aggregate multiple claims that
he or she has against another litigant; however, claims by or against multiple litigants
may not be aggregated with one another.
2. Federal Question Jurisdiction—does the action satisfy 28 U.S.C. § 1331?
a. Essential Federal Element—does the claim contain an essential federal element
such that it arises under federal law?
i. Creation Test—is the claim created by or brought pursuant to federal law?
●
●
Yes. If so, the claim arises under federal law; proceed to Part A.2.b.
No. If not, proceed to the next question.
ii. Substantial Federal Interest Test—if the claim is a state law claim, does
the plaintiff’s right to relief depend upon application or interpretation of federal law? If
so, is the federal interest implicated “substantial”?
●
●
Yes. If so, the claim contains an essential federal element provided
the exercise of federal jurisdiction would not disturb “any
congressionally approved balance of federal
57
and state judicial responsibilities.” Gunn v. Minton, 568 U.S. 251
(2013); Grable & Sons Metal Prods. Inc. v. Darue Eng’g & Mfg., 545
U.S. 308, 314 (2005). Proceed to the next question.
No. If not, then the claim lacks an essential federal element and
federal question jurisdiction does not exist.
b. Well-Pleaded Complaint Rule—does the essential federal element appear on the face of
the plaintiff’s well-pleaded complaint? Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152
(1908). If so, federal question jurisdiction is appropriate. Remember that anticipated or actual federal
defenses or counterclaims must be ignored for purposes of assessing the propriety of federal
question jurisdiction over the plaintiff’s claim. [Note: Counterclaims may qualify for federal question
jurisdiction in their own right but they cannot confer federal question jurisdiction over claims asserted
by the party against whom the counterclaim is asserted.]
B. Supplemental Jurisdiction—if a claim does not qualify for diversity or federal question
jurisdiction (or some other basis for original jurisdiction), does the claim qualify for supplemental
jurisdiction under 28 U.S.C. § 1367?
1. Section 1367(a)—does the broad grant of supplemental jurisdiction in § 1367(a) apply to
the claim?
a. Freestanding Claim—is there a claim over which the court has original
jurisdiction? (See analysis supra Part A).
b. Common Nucleus of Operative Fact—is the supplemental claim at issue part of
the same Article III case or controversy, meaning it and the freestanding claim derive from a
common nucleus of operative facts? United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
2. Section 1367(b)—if § 1367(a) is satisfied, does § 1367(b) nonetheless bar supplemental
jurisdiction in this case?
a. Diversity Claim? Is the court’s jurisdiction over the freestanding, qualifying claim
based solely on diversity?
i. No. If not, § 1367(b) will not prevent supplemental jurisdiction.
ii. Yes. If so, proceed to next question.
b. Supplemental Claim by Plaintiff? Does the supplemental claim at issue consist
of a claim by the original solo plaintiff or by plaintiffs joining the case under Rule 19 or Rule
24?
i. No. If the claim is not made by the original sole plaintiff or by a Rule 19 or
Rule 24 plaintiff, then § 1367(b) will not prevent supplemental jurisdiction. Note that
claims by plaintiffs joined under Rule 23 or Rule 20 qualify for supplemental
jurisdiction, provided the complete diversity rule is not violated. Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546 (2005).
ii. Claim by a Rule 19 or Rule 24 Plaintiff—if the claim is by a plaintiff joined
under Rule 19 or Rule 24, the claim will not qualify for supplemental jurisdiction if
such jurisdiction would be inconsistent with the requirements of the diversity
jurisdiction statute (i.e., the diversity of citizenship and the amount in controversy
requirements).
iii. Claim by a Plaintiff—if the claim is by the original solo plaintiff (as
opposed to a plaintiff joined to others under Rule 20 or Rule 23), then proceed to the
next question.
c. Against Certain Joined Parties? Is the claim against persons made parties
under Rules 14, 19, 20, or 24?
i. No. If not, § 1367(b) will not prevent supplemental jurisdiction.
ii. Yes. If so, supplemental jurisdiction over the claim is not permissible.
3. Discretionary Basis for Denial of Jurisdiction? If § 1367(b) is not an obstacle, are one
of the circumstances of § 1367(c) present such that supplemental jurisdiction should not be
exercised?
a. Novel State Issue—does the supplemental claim involve a novel or complex state
issue?
b. State Claim Predominates—does the state claim substantially predominate over
the federal claim (e.g., the bulk of the evidentiary showing will relate to state issues; the
federal claim is minor compared with state claims)?
c. Original Jurisdiction Claims Dismissed—have the claims over which the court
has original jurisdiction been dismissed?
d. Other Circumstances—are there other exceptional circumstances that would
suggest that the supplemental claims should not be heard in federal court (e.g., jury
confusion)?
C. Removal Jurisdiction—if the case has been filed in state court, is removal to federal district court
proper?
1. Original Jurisdiction—would the federal district court have original jurisdiction over the
plaintiff’s claims if they had been filed in federal court? 28 U.S.C. § 1441(a).
a. Yes. If so, the case may be removable, provided other requirements are met.
Proceed to the next question if removal would be based solely on diversity jurisdiction;
proceed to Part C.3 if jurisdiction would be based on federal question jurisdiction.
b. No. If not, the case is not removable.
2. Diversity Basis—if the claim could have been brought in federal court based only on
diversity jurisdiction, are any of the defendants who have been joined and served in the action a
citizen of the state where the case has been brought? 28 U.S.C. § 1441(b).
a. Yes. If so, removal is improper; a litigant in this situation may invoke the forumstate defendant rule to seek a remand, provided the remand motion is timely (see Part C.6
of this checklist below).
b. No. If not, removal may be proper. Proceed to the next question.
3. Time Limit—has it been more than 30 days since the removing defendant received
service of the initial pleading setting forth the removable claim or notice of a change in the
removability of the case? 28 U.S.C. § 1446(b).
a. Yes. If so, then the defendant has waived the right to remove the case and a
remand may be sought on this ground, provided the remand motion is timely (see Part C.6 of
this checklist below).
b. No. If not, proceed to the next question.
4. Defendant Unanimity—have all of the defendants who have been properly joined and
served in the action agreed to removal? 28 U.S.C. § 1446(b)(2)(A).
a. No. If not, a litigant may obtain a remand on this ground, provided the remand
motion is timely (see Part C.6 of this checklist below).
b. Yes. If so, removal will be proper.
5. Defendant Removal—was the action removed by one of the original defendants or by
the plaintiff? If the plaintiff removed the action, remand may be sought on this ground, provided the
remand motion is timely (see Part C.6 of this checklist below).
6. Motion to Remand—if an action has been improperly removed, can a party seek to
remand the case to state court? Only if the motion to remand is made within 30 days of the filing of
the notice of removal. Remand motions asserting a lack of subject matter jurisdiction may be made
at any time.
Venue, Transfer & Forum Non Conveniens (Orange)
Venue determines which federal court a case can be filed in vs. subject matter jurisdiction,
which determines whether a case can be filed in any federal court.
● Geographic location of trial court
○ Section 1390(a): “the geographic specification of the proper court or courts for
the litigation of a civil action that is within the subject-matter jurisdiction of the
district courts in general.
First, determine personal and subject matter jurisdiction. Like improper pj, smj, or notice,
improper venue can lead to dismissal
Venue can be consented to or waived for example through a forum selection clause or failure to
file a motion for improper venue in the response.
● Court says forum selection clause is a very important factor in ruling on a § 1404(a)
transfer, because it is “in the interest of justice” to enforce these contractual
arrangements (not a § 1406 transfer because venue is not technically improper)
There are some “special” venue statutes, but mostly apply…
Local Action Doctrine:
● Local v. Transitory Actions
○ Local actions involve a piece of property that cannot be moved
● General Rule for local actions:
○ Must be brought in a court in the jurisdiction where the property at issue is
physically located
● (Livingston v. Jefferson, Reasor-Hill v. Harrison)
GENERAL VENUE RULES
28 U.S.C. § 1391(b)(1): Federal Venue Categories
Any district where all defendants reside
● Residency 28 U.S.C. § 1391(c)
o Individuals- the district in which you are domiciled
o Business plaintiffs- where the principal place of business is
▪ One and only one place
o Business defendants- all districts where it is subject to personal jurisdiction for
this case
▪ May be multiple districts, easier for plaintiffs
o Foreign citizens or citizens non-residents- any judicial district
● Residency of Corporations in States with Multiple Judicial Districts 28 U.S.C. § 1391(d)
o Only applies to corporations in multi-district states (ex. VA, TX, CA, NY)
o Look at where the corporations contacts are and imagine the districts are
separate “states”
● If all defendants reside in the forum state, then where any one of them resides
o Ex. One defendant in E.D.Va. and one in W.D.Va., can sue in either one.
-OR28 U.S.C. § 1391(b)(2): Transaction Test
Any district where a substantial part (or omission) of the claim arose
● May be more than one district
●
●
Not a requirement that defendant actually directed conduct at the state for venue
purposes
Venue covering the area where property sits, maybe be a substantial consideration
under this section.
-OR28 U.S.C. § 1391(b)(3): Fallback option to to Transaction Test
Only applies when there is no district in the US where neither of the other venue options
are available
Where any defendant is subject to personal jurisdiction
● This is a gap filler with the purpose of not letting venue get in the way of bringing actions
These venue rules do not apply to removal jurisdiction (See Removal Jurisdiction above)
or supplemental jurisdiction (venue is determined based on the claims that had original
jurisdiction in federal court).
Determination of Proper Venue Process:
● Start with appropriate statute
○ state or federal court?
● Default in federal court is Section 1391
○ Can you satisfy residence test or transaction test for venue?
○ If not, go to fallback category.
OBJECTING TO/TRANSFER OF VENUE
One federal district court to another federal district court. Can cross state lines.
Transferor- original federal district, Transferee- the district where case is sent
Transferor court has the power to grant a transfer under…
28 U.S.C. § 1404(a): Transfer
When original federal district court is a proper venue the court may transfer to a venue that…
● Is considered a proper venue and has personal jurisdiction over the defendant (without
waiver)
● Must be a court where plaintiff could have originally filed an action as a matter of right,
not based on defendant waiving personal jurisdiction
● The court has the discretion to transfer based on convenience to parties and witnesses
and interest of justice (ex. too much media)
● May transfer to any district at all if all the parties agree and the court thinks it is a good
idea
When transferring under this section, transferor forum law applies.
28 U.S.C. § 1406: Dismissal or Transfer
When original federal district court is an improper venue the court may transfer to a venue
that…
● Proper venue (without waiver)
● Must have personal jurisdiction over the defendant (without waiver)
● The court may transfer OR dismiss in the interest of justice
o Consider the same factors as § 1404(a)
o Statute of limitations would also be a big interest of justice issue in this case
When transferring under this section, transferee forum law applies because venue was never
proper, so transferor forum law never should have applied.
28 U.S.C. § 1407 Multidistrict Litigation
Addresses issues of judicial efficiency and economy by consolidating like cases for pretrial
purposes, but then remanding them back to their home district for trial.
Defendant options:
(1) 12(b)(3) Motion to dismiss for improper venue
(2) § 1406 Wrong venue transfer
(3) § 1404(a) General venue transfer
(4) § 1631 Transfer to cure want of jurisdiction
FORUM NON CONVENIENS
● Common Law (judicially created) doctrine of dismissal that says that even though we
have personal jurisdiction, subject matter jurisdiction, and venue is proper there is still
another, better place for this case to be heard.
●
Not used as often now because of § 1404(a) but allows court to direct a case to state
court or to a court of another nation, where § 1404(a) is limited to federal courts.
●
●
At outset, court must determine whether alternative forum exists.
Gilbert balancing test: “unless balance is strongly in favor of defendant, plaintiff’s
choice of forum should rarely be disturbed.
○ Private litigants’ interests
○ Public Interests
FNC Piper’s(TOWT british plane co.) Qualifications:
○ Change in substantive law not ordinarily given substantial weight for FNC
○ Dismissal inappropriate only if essentially no remedy at all in alternative forum
○ Deference to P’s choice of forum applies w/ less force if P is foreign
○ Extensive investigation/detail not needed to establish potential evidentiary
problems for Ds
●
●
Venue-Selection Agreements:
○ Atlantic Marine
■ 1404(a) is proper mechanism for enforcing venue-selection clause in suit
filed outside the selected forum.
■ Court must give presumption of validity and enforcing a valid venue
clause “unless extraordinary circumstances unrelated to the convenience
of the parties clearly disfavor a transfer”
APPLICABLE LAW (Dark Purple)
This applies when we are in Federal Court (generally only under Diversity Jurisdiction)
Is the claim based on federal or state law? If federal law, no issue.
If state law, court must decide whether to apply state law or ignore state law?
According to Tenth Amendment (recognizes and preserves the autonomy and independence of
the states) AND the 28 U.S.C. § 1652 Rules of Decisions Act, must apply state substantive
law.
● The laws of the several states, except where the constitution or treaties of the
US or Acts of Contress otherwise require or provide, shall be regarded as rules
of decision in civil actions in the cours of the United States, in cases where
they apply.
Next analyze,
Is there a federal provision on point (sufficiently broad to cover the matter at hand) that directly
conflicts with state law? Hanna v. Plumer, 1965 (pg. 429)
� If YES, apply federal law if it is valid.
● Look at 28 U.S.C. § 2072 Rules Enabling Act
o Valid if the rule “really regulates procedure” and does not modify
abridge, enlarge, or modify substantive rights
o SCOTUS has never held an FRCP invalid
● When a FRCP directly conflicts with state law, apply FRCP. § 1652 Rules of
Decision Act explicitly says that state law applies unless the constitution or an
act of congress applies.
� If NO, turn to Erie analysis…
If there is no federal provision on point that directly conflicts with state law, we are dealing only
with federal common law so analyze… Erie R. Co. v. Tompkins, 1938(TOWT train knocked
the guy’s arm off)
ERIE TAKEAWAYS:
● Concerned with fed. courts creating CL based on background natural law
principles, not authorized by the constitution
● Congress can enact substantive law under Article 1 Commerce Clause, and
create federal CL rules of decision for the federal courts
● Federal power over procedure
○ Necessary and Proper Clause (Article 1 Section 8)
How to determine when the matter is substantive:
Outcome Determinative Test- Guaranty Trust v. York, 1945 (TOWT breach of fiduciary duties,
pg. 415)
(1) Federal courts must apply state law in any instance of substance, not necessarily
procedural matters.
(2) Will it significantly affect the outcome of the case?
a. Ex. Statute of limitations has run according to the state law, but not federal law. If
we use the state law the case is barred right now, if we don’t it will proceed. This
is a different outcome.
� If not outcome determinative, apply federal law, no issue.
� IF OUTCOME DETERMINATIVE go to…
Hanna Test- Hanna v. Plumer, 1965
● Is there a FRCP or Statute on point, and is the rule “broad enough” to reach the
situation in dispute?
● Does the FRCP or Statute directly conflict w/ state rules, or can both be
accommodated? (unavoidable clash, unfair)
● If the rules conflict, is the Federal Rule proper under the Rules Enabling Act and
Constitution?
○ i.e. does it truly regulate procedure rather than abridging/modifying substantive
rights? (Rules Enabling Act) (Sibbach test - process for enforcing rights and
duties, ustly administering remedy and redress)
○ Consistent with Article III of the Necessary/Proper Clause?
■ Rationally capable of classification as procedural rule?
●
Hanna’s modification of Outcome Determinative Test:
○ Not “talismanic”
○ Must be examined in light of Erie’s “twin aims”
■ Discouragement of Forum Shopping
■ Avoidance of inequitable administration of laws
○ Must be evaluated ex ante-at the inception
■ Are rules so different that they would affect choice of forum at outset of
the action?
-ANDByrd’s Balancing Test (Federal Interest test but don’t call this on exam)- Byrd v. Blue
Ridge Rural Electric Cooperative, Inc., 1958 (TOWT state policy of a judge trial for this type of
case, pg. 424)
(1) Is there a strong federal policy behind the federal law?
a. “The policy of uniform enforcement of state-created rights and obligations cannot
in every case exact compliance with a state rule which disrupts the federal
system…”
(2) Byrd was a diversity case, state law saying needed to be a judge trial not a jury trial in
contrast to federal procedure
a. If a provision is not clearly substantive, Fed Ct. should still follow it, UNLESS the
Fed Ct. system has some interest in doing it differently
b. In this case, Fed Ct. procedure should take priority, because Fed Ct. had a
stronger interest in maintaining the jury system- outweighed state interest.
After Hanna/Byrd Examples:
● Walker - FRCP 3
○ Example of case involving FRCP where court is able to avoid Hanna/Rules
Enabling analysis because of limited scope of the Federal Rule
○ No “direct collision” between Federal Rule and state law
● Stewart - 1404(a) Venue Transfer and Convenience
○ Extends Hanna to cover ALL federal statutes, not just FRCP
● Shady Grove:
○ example case of how to evaluate and argue the application of the law. Class
Action Case USSC applies FRCP 23
Threshold Question:
● Is there a FRCP or statute on point, and does the Rule reach the situation
in the dispute?
○ If no federal rule/statute at issue, evaluate federal practice/CL
according to Erie
○ If yes federal rule/statute at issue, proceed with Hanna analysis
Hanna Test:
● Does the FRCP or statute conflict with state rules, or can both be
accommodated?
○ If both can be, proceed with Erie analysis
● If the rules conflict, is the Federal Rule proper under the Rules Enabling
Act and/or Constitution?
○ REA: does it abridge, enlarge, or modify substantive right?
■ does it really regulate procedure rather than
abridging/modifying substantive rights? (Sibbach test)
■ Consistent with Article III and Necessary/Proper Clause?
● “rationally capable of classification” as procedural rule
Erie-York-Byrd Test
● Is the state rule at issue substantive or procedural?
○ Substantive=creating or bound up with state-created
rights/obligations
○ Procedural=form/mode of enforcing rights/obligations
○ If substantive, governing rights and obligations, federal court must
state rule
● If the competing state/federal rules are procedural, or classifiable as
both, would application of one vs. the other affect the outcome of the
litigation? (outcome determinative test as modified by Hanna) - ex ante
○ In context of Erie’s twin aims
■ Litigant autonomy/equality
■ Forum shopping
○ If neither of twin aims implicated, apply federal rule; if either
implicated, proceed to balancing test
● Byrd’s balancing test
○ State substantive policies/litigant autonomy furthered vs.
countervailing fed. interests?
○ After Gasperinini: when essential characteristic of federal system is
involved, Court may broaden analysis to look at countervailing
considerations and attempt a compromise.
Federal Common Law:
● “Specialized” federal judge-made law (vs. “general” federal common law)
○ Rules of decision adopted and applied by federal courts that have the force and
effect of interpretation to federal or constitutional command
○ Binding under Supremacy Clause in state courts
● SCOTUS justifications?
○ Uniquely federal interests
■ admiralty/maritime
■ international relations
■ Legal activities of the United States
■ Interstate disputes
Federal Procedural Common Law:
● Forum non conveniens
● Abstention
● Stare decisis
● Rules of finality
*Diversity cases always present at least two possible bodies of law (from each of the states of
the parties). Federal courts apply the conflict of law rules of the states in which they sit. Ex. NY
court in Erie applied PA tort law because NY conflict of law rules said to apply the place where
the injury occurred.
*States may also have to apply federal law in federal question jurisdiction. Generally, apply
federal law to substantive matters and state law to procedural matters.
PLEADING(Pink(adjudication w/o trial/special proceeding also Pink)
Note on first few FRCP:
● Rule 1: just, speedy, inexpensive determination
● Rule 2: merges common law and equity
● Rule 3: when civil action commences
● Rule 4: summons, service of process, pj in fed. courts
● Rule 5: serving papers
● Rule 6: TIME!
● Rule 7: describes pleadings
Current Rule 7(b):
● “a request for an order”
● In writing (unless made at trial)
● State grounds for the motion with particularity
● state the relief sought
Pleadings vs. Motions:
● Pleadings set forth claims/defenses seeking relief
● Motions challenge form or sufficiency of claims or seek preliminary rulings
Types of Pleadings
Complaint- Plaintiff’s pleading
Answer- Defendant’s pleading
-ANDCounterclaim- Defendant has a claim against plaintiff
Cross-claim- Defendant wants to sue a fellow defendant (party suing someone on the same
side of the suit)
Third Party Complaint- Party wants to sue another party that is not a part of the suit yet
*Each of these also require answers
Functions of Pleading:
(1) Set out the facts
(2) Put the other side on notice for what is being alleged and defenses
(3) Eliminate frivolous complaints
Historically, notice pleading meaning you should not have to put a lot of detail into your
pleadings. Goal is to put the other side on notice. FRCP Pleading rules created based on the
belief that cases should not be judged on the merits at the pleading stage.
Burden of Pleading
Whoever has the burden of proof (production and persuasion) generally has the burden of
pleading, generally the plaintiff
● Burden of Production- party must produce enough evidence that a jury could decide
from (decision for judge)
● Burden of Persuasion- plaintiff must convince the jury on matters pertaining to their claim
by a “preponderance of the evidence” (more probable than not); defendant must
convince the jury on affirmative defense claims
Claim must be “well-pleaded” to avoid dismissal under FRCP 12(b)(6) for failure to state a claim
upon which relief can be granted.
THE COMPLAINT
FRCP 8(a) Plaintiff files the complaint, that’s what starts the lawsuit. Must include:
(1) Statement of SMJ
(2) FRCP 8(a)(2) “Short and plain statement of the claim showing that the pleader is entitled
to relief”
a. Enough to put the plaintiff on notice of what will be alleged at trial
b. Bell Atlantic Corp. v. Twombly, 2007 (TOWT parallel business
conduct/potential conspiracy) & Ashcroft v. Iqbal, 2009 (TOWT discrimination
claim that was not considered plausible by the court)
c. Plaintiff must plead facts supporting a claim that is plausible on its face.
i. Standard is not quite probability, that is for the end of trial
1. Not probable, but more than possible or conceivable
ii. But not as low as possibility
iii. Mainly applies to circumstantial evidence, because direct evidence is
much clearer on its face
iv. Complaint must show what the plaintiff is pleading and show why they are
entitled to relief
1. Emphasis on the showing part of FRCP 8(a)(2)
d. TEST FOR PLAUSIBILITY: Plaintiff must plead factual content allowing
court to draw reasonable inference that defendant is responsible for
misconduct alleged
i. Plausible claims will survive a 12(b)(6) motion to dismiss for failure to
state a claim
ii. Courts apply Twombly most rigorously to complicated cases that would
lead to extensive discovery
iii. Not a discretionary rule
e. Three rules the court will follow
i. Court ignores conclusions of law and focuses only on the allegations of
fact
ii. Those facts must support a plausible claim, not just a possible claim
iii. To determine plausibility a judge will use own experience and common
sense
(3) Demand for relief
a. Type of relief sought can affect whether you get a jury trial. (Damages � Jury
Trial, Equity � No right to jury trial)
Additional Pleading Rules:
● FRCP 8(d) - Alternative Statements of a Claim or Defense:
○ “a party may set out two or more statements of a claim or defense alternatively or
hypothetically either in a single count or defense or in separate ones. If a party
makes alternative statements, the pleading is sufficient if any one of them is
sufficient.
● FRCP 9(b) - Fraud or Mistake; Conditions of Mind (heightened pleading standard)
○ “In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.
■ Adequate notice and deterring pretextual complaints
■ Protect reputations of those who would be harmed by fraud allegations
■ Prohibit plaintiffs from imposing enormous costs absent some factual
basis.
●
FRCP 8(a)(3):
○ “a demand for the relief sought, which may include relief in the alternative or
different types of relief.”
THE RESPONSE
● A defendant may:
○ File an answer; or
○ File motion to dismiss under Rule 12(b); or
○ File motion for more definite statement under Rule 12(e); or
○ File motion to strike redundant, immaterial, impertinent, scandalous matter under
Rule 12(f)
● Time to respond?
○ Rule 12(A)(1)(a) - 21 days, or 60/90 days if D agreed to waiver of formal service
under Rule 4(d)
● Calculation of time - Rule 6(a)
Motions
Motions are not pleadings but can be made before and during trial.
Motions to Dismiss: FRCP 12(b)
(1) Lack of SMJ
(2) Lack of PJ
(3) Improper venue
(4) Insufficient process
(5) Insufficient service of process
(6) Failure to state a claim upon which relief can be granted
(7) Failure to join a party under FRCP 19 (indispensable party)
FRCP 12(b)(6) Motion to Dismiss for Failure to State a Claim
Purpose of 12(b)(6) is to test the sufficiency of the complaint and get more at the merits of the
case.
In this motion the court does not look at evidence, looks only at the face of the complaint.
Court applies the Twombly & Iqbal standards:
(1) Court ignores conclusions of law and looks only at allegations of fact.
(2) The facts alleged must support a plausible claim, not just a possible claim.
(3) To determine plausibility the judge uses her own experience and common sense.
Effect of Motions to Dismiss: places time to file responsive pleading on hold
● 14 days of notice court has denied your motion
FRCP 12(e) Motion for More Definite Statement
● so vague or ambiguous that party cannot reasonably prepare a response
● Must be made before filing responsive pleading
● Point out defects complained of and detail required
● P must comply w/order for more definite statement within 14 days after notice
o Or court may strike the pleading
FRCP 12(f) Motion to Strike
● An insufficient defense
● Redundant, immaterial, impertinent, scandalous matter
● Court may move on its own, or on motion to dismiss before filing of answer
FRCP 12(h)(1): Waiving Certain Defenses: PJ, Venue, Process, Service
● 12(h)(1)(b): Failure to include in D’s first response to the complaint
○ Pre-Answer Motion or
○ Answer or amended answer rule under 15(1)(a)
FRCP 12(g)(2): Limitation on further Motions
● 12(h)(1)(a): a party waives PJ, venue, process, service by failing to include in one
motion to dismiss
FRCP 12(h)(2): Can raise failure to state a claim, failure to join a necessary party, failure
to state a legal defense
● In a pleading
● In a motion for judgment on the pleadings (Rule 12(c))
● at trial
FRCP 12(h)(3): Can raise SMJ at any time
Answer
Answer is a pleading.
Answer within 21 days after service of process (or 60 for waiver of service of process) OR 14
days after a MTD ruling (12(a))
FRCP 8(b) Defendant must respond to the complaint by either:
(1) Admitting
(2) Denying
▪ Can deny generally, except what is admitted FRCP 8(b)(3)
● Mainly used to deny whole paragraphs
▪ Failure to deny constitutes an admission (except for damages according
to FRCP 8(b)(6))
(3) Claiming lack sufficient information to admit or deny (treated as a denial)
▪ Do not want to overuse insufficient information because a court can deem
it admitted if it appears there is enough information
▪ Courts will also disallow the defendant offering evidence on those claims
at trial
(4) Admit in part, deny in part
(5) Note*** Failure to file = default FRCP 8(b)(6)
FRCP 8(c)(1) Raise affirmative defenses
● Must plead affirmative defenses or else they are waived
AMENDED AND SUPPLEMENTAL PLEADINGS
(1) FRCP 15(a)
a. 15(a)(1) Plaintiff has a right to amend once within 21 days after serving
defendant or 21 days after defendant serves her first FRCP 12 response
b. 15(a)(1) Defendant has a right to amend once within 21 days after serving an
answer
i. 21 days after service of responsive pleading (answer) or 21 days
after service of a Rule 12 motion, whichever is EARLIER
c. 15(a)(2) If these times are gone, can ask for leave of court to amend
i. Starting Point: Courts should freely give leave to amend when justice
requires only with consent of court order
ii. Denials should be because of prejudice or bad faith Beck v. Aquaslide,
1977 (allowing defendant to amend, pg. 643)
d. Time to respond:
i. Within 21 days of service of original complaint OR
ii. 14 days, whichever is longer
(2) FRCP 15(b) Amendments During and After Trial, Variance
a. Evidence at trial does not match what was pleaded
b. Other party can object or not object to the variance
c. If they do not object to the variance then we just act as if it was pleaded and we
can amend the pleading to the evidence
i. Parties can and should ask to limit certain evidence to the particular issue
to avoid pleadings being amended during trial to add in claims you are
unprepared for.
d. If they do object, then the evidence is not admissible
e. 15(b)(1) may ask for permission to amend, freely permitted when it aids in
presenting the merits of the case and when there is no evidence of prejudice
f. 15(b)(2) can seek leave to amend a pleading to add something that matches
evidence that has been brought in, but not necessarily needed
Fomen v. Davis Factors for Granting Leave to Amend:
● Undue delay
● bad faith
● repeated failure to cure deficiencies
● Undue prejudice
● Futility of amendments
(3) FRCP 15(c): “Relation Back” Doctrine
a. Trying to amend to add a claim
b. Trying to amend to change the defendant
c. Only makes sense if the amendment “Relates Back”
i. 15(c)(1)(A) Relation back when state statute of limitation allows it
ii. 15(c)(1)(B) Relation back for an additional claim- if the new claim arises
from the same conduct, transaction, or occurrence
iii. 15(c)(1)(C) Relation back to change the defendant or the naming of the
defendant:
● Must arise out of the same transaction/occurrence
● Party must receive notice within 90-day period required by Rule
4(m)
● Party received notice such that they won’t be prejudiced defending
on merits
● Party knew/should have known that action would’ve been brought
against them, but for mistake concerning proper identity
(Krupski v. Crociere)
○ Plaintiff’s diligence isn’t required to satisfy “relation back”
doctrine
○ Plaintiff’s conduct relevant to determining whether D
understands P made a mistake
(4) FRCP 15(d) Supplemental Pleadings
a. You want to add something to the case, but it did not happen until after the case
was filed
b. Ask for permission, never a right, usually pretty liberal about allowing
supplemental pleadings
i. Motion and reasonable notice
ii. Supplemental pleading setting out any transaction, occurrence, or event
that happened after the date of the original pleading to be supplemented
iii. May permit supplementation even though original pleading is defective in
stating claim or defense, may order opposing party to respond.
FRCP 11 Signing Pleadings, Motions, and Other Papers; Representations to the Court;
Sanctions
Applies to all pleadings and other documents, except discovery documents (Discovery
sanctions are under FRCP 37)
11(a): Requires the attorney to sign and certify
11(b) says your signature certifies:
● 11(b)(1) No improper purpose;
● 11(b)(2) There is law in support of what you are claiming or non-frivolous argument that
the law should change; and
● 11(b)(3)-(4) There is evidence in support of what you are claiming
● This is a continuing certification for the remainder of the trial
11(c) Sanctions under this rule are discretionary
● Objective is deterrence
● 11(c)(1) Law firm must be held jointly responsible for conduct of an attorney except in
exceptional circumstances
● 11(c)(2) Motion for sanctions cannot be filed right away: give party 21-day safe harbor to
correct before filing the motion with the court
● 11(c)(3) Court is able to initiate sanction, starting with a “show-cause hearing” for the
party to argue why it should not be sanctioned
o § 1927 Counsel’s liability for excessive costs
▪ Attorneys in any civil case can seek to impose costs when it seems like
opposing party is just trying to drive up the cost of litigation
▪ Another type of sanction, in addition to FRCP 11
11(d): Not applicable to discovery
● Rule 26(g) and 37
JOINDER (LIGHT PURPLE)
Joinder rules determine how “big” a case can get. How many parties and claims can be joined
into one case
REMEMBER: Every single claim in Fed Ct. must have a basis in SMJ. Think about (1) joinder
rule and (2) SMJ.
Claims:
CLAIM JOINDER BY PLAINTIFF (Permissive Joinder of Claims)
FRCP 18(a) Joinder of Claims
● Party “may join, as independent of or alternative claims, as many claims as it has
against an opposing party.”
● Applies to original claims, counterclaims, cross-claims, and third-party claims
● Can be related or unrelated claims
● Decision to add these claims is discretionary
● 1367(b) carveouts
○ Claims by plaintiffs against persons made party under Rules 14, 19, 20, 24
○ Claims by proposed plaintiffs under Rules 19, 24
● The Joinder Two-Step Test:
○ Is Joinder Permitted? Required?
○
Is there SMJ over the joined claims (and are the other fundamental requirements
satisfied)?
CLAIM JOINDER BY THE DEFENDANT
Counterclaim FRCP 13(a)-(b): A claim against someone who has sued you. Filed with the
answer
Compulsory counterclaim FRCP 13(a): Pleading “must state as a counterclaim” any claim
that:
● Arises from the same transaction or occurrence as the opposing party’s claim
o Doesn’t require addition of party over whom the court doesn’t have jurisdiction
● Need SMJ, but very easy to get because “common nucleus of operative fact”/ “same
transaction or occurrence”
● Must be asserted in this case or else you waive the claim
● If there is already a pending action on a claim, not required to join it. Also, not required to
join if quasi in rem.
Permissive counterclaim FRCP 13(b): Pleading may state as a counterclaim against an
opposing party any claim that is not compulsory
● May assert it or sue on it separately
● Arises from a different transaction or occurrence
● Harder to get SMJ, must have independent basis for SMJ, because not same
transaction or occurrence
● 13(e): Court may permit party to file supplemental pleading asserting a counterclaim
that matured or was acquired after serving an earlier pleading
General Rules of Counterclaims:
● Like Rule 18 claim joinder, no limitation on number/type of claims to be brought
● Must independently satisfy PJ, SMJ, and Venue requirements
Cross-claim FRCP 13(g)
● A claim against a co-party, must arise from the same transaction or occurrence as the
underlying case
○ “Logical relationship” test
○ Or relates to property that is subject of the original claim
● Mostly defendant against defendant
● Cross-claims are never compulsory
● May be asserted with the current case or can be asserted in a separate case later
● Only way you can have a cross-claim is if the plaintiff joined multiple plaintiffs or multiple
defendants under FRCP 20
● Also need SMJ, usually supplemental jurisdiction. Maybe federal question or diversity.
● *****NOTE: Inserts a “v” into the relationship and becomes adversarial. Once it
becomes adversarial, requirements for compulsory counterclaims are triggered.
Rule 42(b) - Separate Trials: Complicated Lawsuit Implication:
● “For convenience, to avoid prejudice, or to expedite and economize, the court may order
a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or
third-party claims.”
Parties:
FRCP 20: Permissive Joinder of Parties (Parties that may join or be joined)
20(a)(1) Plaintiffs may join together in an action if
● Arises out of the same transaction or occurrence
● Claims raise at least one common question of fact or law
● Plaintiffs may join together all defendants against who they have claims
20(a)(2) Defendants may be joined together if
● Arises out of the same transaction or occurrence
○ Logical Relationship Test
● Claims raise at least one common question of fact or law
● Assert a right to relief jointly, severally, or in the alternative.
Important Notes:
● Don’t forget to check fundamentals!!! 167 SJ - if “anchor claim” is diversity, remember
no supplemental jurisdiction over claim by original plaintiff against a person made a
party under Rule 20
● Court has the power to sever the claims in the interest of efficiency or clarity
FRCP 19: Compulsory Joinder of Parties
FRCP 19(a) Persons Required to Be Joined If Feasible (Formerly indispensable party)
Sometimes a court will force an absentee into the case if it determines the absentee is
necessary under FRCP 19(a)(1)
(1) Test 1- 19(a)(1)(A) Without the absentee the court cannot accord complete relief among
the parties (plaintiff protection
(2) Test 2- 19(a)(1)(B)(i) The absentee’s interest may be harmed if she is not joined (thirdparty protection)
(3) Test 3- 19(a)(1)(B)(ii) The absentee’s interest may subject the defendant to multiple or
inconsistent obligations (defendant protection)
Court still needs PJ, SMJ, & venue of third-party, if PJ or venue not raised, waived
Court can bring in a new defendant and realign parties and then reexamine diversity of
citizenship
*Joint tortfeasors are not considered “necessary”
FRCP 19(b) When Joinder Is Not Feasible
Ex. No PJ, SMJ, or venue over the party
Test to decide whether to dismiss the action when joinder isn’t feasible:
(1) Extent to which judgment rendered in without the party would prejudice the person or
existing parties (Protection for third-party, maybe defendant)
(2) Extent to which prejudice could be overcome (Protection for third-party, maybe
defendant)
(3) Whether judgment rendered in person’s absence would be adequate (Plaintiff
protection?)
(4) Whether plaintiff would have adequate remedy if action were dismissed for nonjoinder
(Plaintiff protection)
FRCP 19(c) - pleading the reasons for nonjoinder.
When a court decides dismissal would be a greater problem, the court will proceed with the
case
If a court decides to dismiss, the absentee is considered indispensable and the motion to
dismissed is under FRCP 12(b)(7)
MISJOINDER AND NONJOINDER OF PARTIES
FRCP 21 court may dismiss a party that should not be joined without having to dismiss the
whole action.
IMPLEADER
When can a defendant join a third-party?
FRCP 14(a)(1) Third-Party Joinder
● Defendant joins a third-party-defendant
● May join when third-party may be liable to defendant, if defendant is found liable for the
plaintiff’s claim.
● Claims for indemnity (totally liable) or contribution (partially liable)
FRCP 14(a)(2)(A) – (D) General Impleader Rules for third party defendants:
● Must file an answer
● Must assert Rule 12 defenses
● Must assert compulsory counterclaims under Rule 13(a)
● May assert permissive counterclaims
● May assert crossclaims
● May assert defenses against plaintiff
● May assert a claim against plaintiff arising from same transaction/occurence
● May bring in additional Third Party Defendants - Rule 14(a)(5)
FRCP 14(a)(3) Plaintiff can assert a claim against third-party defendant.
*Still need to get SMJ in all of these cases
Approach to Impleader Analysis:
● Start with analysis of whether original defendant may assert thirt party claim
○ Does the D have claim that the TPD will be derivatively responsible for any
judgment in favor of P?
○ Is there PJ over TPD?
○ Is there SMJ over TPD?
○ Is there SMJ over the third party claim?
■ Generally okay under 1367(a) which permits joinder of claims & parties
○ What are the TPD’s requirements?
■ Must assert Rule 12 defenses and compulsory counterclaims against
TPP, and against Plaintiff if Plaintiff asserts a direct claim against TPD
○ What are TPD’s options?
■ May assert permissive counterclaims
■ May assert cross-claims
■ May assert defenses against the plaintiff
■ May assert a claim against the plaintiff that is part of same
transaction/occurrence
○ What are P’s options for TPD?
■ May assert claims arising out of same transaction/occurrence
● Is there SMJ? Consult 1367(b) for SJ
INTERVENTION
FRCP 24
A third-party seeks to join a lawsuit/intervene.
FRCP 24(a) Intervention of Right: Court must permit if:
● Federal statute permits joinder, OR
● Intervenor claims interest relations to subject of the action and disposition without
intervenor may impair ability to protect interest
○ Unless existing party can adequately protect the interest
FRCP 24(b) Permissive Intervention: Court may grant if:
● Statutes permit, OR
● Intervenor has claim/defense that shares a common question of law/fact with main
action
*Still need to get SMJ, but PJ and venue not issues because waived
Intervention General Rules:
● “Timely” motion to intervene
○ Not fixed
● Intervenor must file motion stating grounds, and include a pleading stating
claims/defenses
● Intervention is discretionary on part of the intervenor, and isn’t required
○ Not compulsory
● Don’t forget the fundamentals!
○ 1367 SJ - if “anchor claim” is diversity, remember no SJ over claim by original
plaintiff against person made party under Rule 24
○ Also no SJ over persons seeking to intervene as plaintiffs under Rule 24
INTERPLEADER (2 types: Rule 22 & 1335)
Allows “stakeholder” who is subject to inconsistent claims to property (the “stake”) to bring all
persons claiming an interest in the stake into a single action.
FRCP 22
Multiple claims against the same property rights
Person seeking property ownership names the potential original owners claiming the rights to
figure out who to pay
● Odd procedural posture because you have a plaintiff who is more like a defendant and
defendants who are more like plaintiffs
● Court will realign the parties after filing is done so that defendants become co-plaintiffs,
easier for trial
Must have federal question or diversity jurisdiction (Aka complete diversity and amount-incontroversy exceeds $75,000)
Congress also passed § 1335 Statutory Interpleader
● Amount-in-controversy only $500
● If any two defendants are diverse regardless of the plaintiff or other defendants, you can
bring suit in federal court.
§ 2361 Process & Procedure for Statutory Interpleader
● Nationwide service of process
● National jurisdiction
●
Relaxes the requirements for personal jurisdiction in statutory interpleader
Joinder Rules Table:
● Joinder of Claims
○ Permissive Joinder of Claims - 18
○ Compulsory Counterclaims - 13(a)
○ Permissive Counterclaims - 13(b)
○ Crossclaims - 13(g)
● Joinder of Parties
○ Permissive Joinder of Parties - 20
○ Necessary Parties - 19
○ Third Party Practice - 14
○ Intervention - 24
○ Interpleader - 22
Analyzing Joinder Problems Checklist:
● Joinder of claims or parties?
● Which rules apply?
● Is the joinder required or permitted?
○ Permissive: Rule 18(claims), rule 13(b) (counterclaims), Rule 13(g)
(crossclaims), Rule 20 (parties), Rule 14(third party practice), Rule
24(intervention), Rule 22(interpleader)
○ Compulsory: Rule 13(a)(Compulsory counterclaims), Rule 19(necessary parties)
● Does joinder of the claim/party satisfy the rule’s requirements?
● Once the claim/party is joined, does that joinder implicate action on the part of other
parties?
● If the joinder rules permit/require joinder of a claim or party, are the independent
requirements of SMJ, PJ, and Venue satisfied?
○ Don’t forget 2367(b) - Rules 14, 19, 29, 24, or persons joining as Rule 19 or
24 plaintiffs.
Discovery (Green)
FRCP 27: Permits pre-filing discovery to preserve testimony (Sheila Roberts Ford)
● “Perpetuate” testimony to prevent failure/delay of justice
○ Imminent death, illness?
○ International travel?
Scope of Discovery & Limits: 26(b):
● Rule 26(b): “any nonprivileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case”
● Relevance - content of information sought
○ Relevant to subject matter, for a good cause (Kelly v. Nationwide)
○ Evidence making existence of fact more/les probable
○ Admissibility isn’t required
Limits on Discovery: Proportionality/Burden:
● 26(b)(1) Weighing of Interests - “proportional to the needs of case”
○ Importance of issues at stake
○ Amount in controversy
●
●
○ Parties’ relative access to relevant information
○ Parties’ resources
○ Importance of discovery in resolving the issues
○ Whether burden or expense of discovery outweighs its likely benefit
26(b)(2)(C): Require Limitations on Discovery
○ “Discovery sought is unreasonable cumulative or duplicative, or can be obtained
from another source that is more convenient, less burdensome, or less
expensive”
■ Ample opportunity for discovery
■ Outside scope of 12(b)(1)
26(b)(2)(B): E-discovery
○ Not reasonable accessible because of burden or cost.
Objecting to Discovery: 26(c)
● Must include certification of good faith attempt to confer to resolve the dispute without
court action
● Move for protective order
○ To prevent annoyance, embarrassment, oppression, undue burden, expense
● Requires “good cause”
○ Court has options to limit or prohibit requested discovery
The Duty to Confer and Plan for Discovery: 26(f)
● Parties should confer as soon as practicable after commencing the lawsuit to devise a
discovery plan.
● Plan should include “views and proposals” concerning
○ Range of proposed requests
○ Automatic disclosure
○ Privilege
○ Electronic info
○ Schedule for production of docs.
Discovery Timeline 26(f):
● Discovery Conference (21 days before scheduling conference or scheduling order is
due) ->
● File Rule 26(f)(3) Discovery Plan with court (14 days after Discovery Conference);
Serve Rule 26(a)(1)(C) Initial Disclosures (at or 14 days after Discovery Conference) >
● Rule 16 Scheduling Conference and/or Scheduling Order due date (90 days post
service, or 60 days post appearance)
Scheduling Orders Rule 16(B)(3):
● Can also modify timing for disclosures, extent of discovery, set dates for pretrial
conferences and trial, etc.
● Join other parties
● Amend pleadings
● Complete Discovery
● File Motions
Mandatory Disclosures 26(A):
● Initial Disclosures
○ Witnesses/documents
●
●
■ That party may use to support claims or defenses
○ Computation of damages
○ Insurance agreements
○ 26(a)(1)(E) - made based on information then reasonably available
Expert Disclosures
Pre-trial disclosures
○ Trial Witnesses and documents
Certification & The Duty To Supplement:
●
●
Rule 26(g) – Certification
○ Disclosures complete and correct at time made
○ Request, response, or objection
■ Consistent with rules and warranted by existing law or an extension
■ Not imposed for any improper purpose – harass, cause unnecessary
delay, needlessly increase cost of litigation
■ Neither unreasonable nor unduly burdensome
Rule 26(e) – Supplementing Disclosures and Responses
○ Must supplement in a timely manner if party discovers information is incomplete
or incorrect or
○ According to court order
Discovery Mechanics:
●
●
●
●
●
●
Timing – Rule 26(d)
○ Generally not until after discovery conference
Requests for Production – Rules 34, 45
○ ESI: factors at p. 590
Depositions – oral and on written questions – Rules 30, 31
Interrogatories – Rule 33
Physical/Mental Examinations – Rule 35
Requests for Admission – Rule 36
Privilege - Source of Information Sought
●
●
●
●
●
“Parties may obtain discovery regarding any nonprivileged matter.” Fed. R. Civ. P. 26(b)
Evidentiary privileges
○ Examples: attorney-client, husband-wife, doctor-patient, priest-penitent
The work product doctrine – Rule 26(b)(3)
○ Materials prepared in anticipation of litigation
○ Generally protected
○ Exception: discoverable if relevant and requesting party shows “substantial
need”
○ Can’t discover “core” attorney work product
■ mental impressions, conclusions, opinions or legal theories of attorney –
26(b)(3)(B)
■ Including consulting experts – 26(b)(4)(D)
Asserting privilege or protection – Rule 26(b)(5)
○ Describe nature of withheld information
○ Privilege log
Inadvertent production – Rule 26(b)(5)(B)
Judicial Supervision of Discovery and Use of Discovery at Trial
●
●
Discovery Conduct – Obligations and Sanctions
○ Rule 26(g) certifications
○ Rule 37 sanctions
Using Discovery at Trial
○ As admissions
○ To refresh a witness’s recollection
○ Provide basis for cross-examination or impeachment
○ Unavailable witness
ADJUDICATION W/O TRIAL (Pink w/pleading (only 41,55,56 for this)
FRCP 56 SUMMARY JUDGMENT
Challenging a case for sufficiency to go to trial because no disputed issues of law or material
fact
(Different from 12(b)(6) where the claims are insufficient, in summary judgment the evidence is
insufficient)
Can be filed at any point, but court usually will not rule on it early on unless a matter of law
judgment.
Summary judgment can be granted on some claims without being granted on the full complaint
too
The party moving for summary judgment must show:
(1) No genuine dispute as to any material fact.
(2) AND that the party is entitled to judgment as a matter of law.
Court should indicate the reasons for the summary judgment
Burden of Proof
Burden of Pleading (See pleading)
Burden of Production
● Party must introduce enough evidence that the court will allow a case to go to the jury
● Once burden of production is met by one party, shifts to the other party to meet the
burden of proof and refute
o Ex. if the plaintiff put forward evidence to meet burden of production and
defendant offered no evidence � summary judgment for the plaintiff
Burden of Persuasion
● Only attaches if the case goes to the jury, to persuade the jury that it is more likely than
not (preponderance of the evidence for civil cases) that my version of events is correct
● Burden of Persuasion makes it more difficult for a plaintiff to succeed in a summary
judgment motion, because they would need to show that there was no way a jury would
find for them on any facts
● Burden of Persuasion does not shift, starts and ends with the plaintiff
Summary Judgment Burden
● Burden is placed on the moving party
● Burden of showing test under FRCP 56 is met, no genuine dispute of material fact and
the party is entitled to judgment as a matter of law
o (Mixed questions of law and fact are still considered material fact)
●
●
●
●
If there is some evidence from which a jury may reasonably infer the non-moving party’s
version of events is correct you need to allow that issue to go to the jury
o See Adickes Case
But it must be a plausible inference in instances of cases built on circumstantial
evidence (not direct evidence)
o See Matshushita Electric Case
o Court may disregard supporting evidence that is unconvincing, can be
discounted, or can’t preclude alternative explanations
The moving party does not necessarily have to submit evidence to support, just show
lack of fact issue
o See Celotex Case
o Burden would shift to non-moving party to show that there really is a fact issue
When the standard for burden of proof is higher and will be submitted to the jury as
higher, the court should take that into account when ruling on a summary judgment
motion
o For example, when the standard is “clear and convincing evidence”
o Difficult position because the court has to weigh credibility to some extent which
is really a jury job
▪ Court assesses what a reasonable jury would find
▪ When videotape evidence exists and presents only one logical inference
or version of events judges can grant summary judgment motion despite
issues of fact potentially presented by non-moving party (See Scott v.
Harris)
▪ *Potential Policy Question* Conflict Between Seventh Amendment
Right to a Jury Trial vs. Summary Judgment to Increase Efficiency
and weed out frivolous claims
● In Scott v. Harris- study found later that some participants did not
view the video as clear evidence, especially individuals from lower
socioeconomic statuses and diverse racial backgrounds
o Most judges take the approach of denying summary judgment when in doubt to
be on the safe side
Summary Judgment Procedures
FRCP 56(c) Procedures
● (1)(A) Cite to materials on record OR
● (1)(B) Show materials cited do not show absence or presence of dispute
● (2) Judge should not consider inadmissible evidence, because they will not create an
issue at trial
● (3) Need only consider cited materials, but can consider other materials in the record
● (4) Affidavits or Declarations
FRCP 56(d) When Facts are unavailable to the nonmovant
● If party is not in a position to refute it, non-moving party may ask for additional time
● Trial judge has discretion on whether to allow or not
Court will look at evidence for summary judgment
Where does the evidence come from?
● Proffered by the parties in written form: affidavits, declarations, deposition testimony, or
answers to interrogatories
● Court can also consider admissions
● Pleadings are not evidence
●
●
Court cannot assess the credibility of the evidence, that is for the jury
o Judge decides if there is an issue of disputed fact, not how that issue would be
resolved at trial.
Court may credit evidence supporting the movant only if it is:
o uncontradicted,
o unimpeached, and
o comes from a disinterested witness
No right to have this granted, always discretionary
SCOTUS has encouraged District Courts to grant summary judgment more often. See Scott v.
Harris if there is a video of an incident, a court may grant summary judgment based on that
video, regardless of the other potentially conflicting evidence proffered by the parties.
Voluntary Dismissal/Involuntary Dismissal: FRCP 41
FRCP 41(a)(1) By the Plaintiff
● 41(a)(1)(A) Without a court order plaintiff may dismiss an action by
o (i) filing a notice of dismissal before the opposing party serves an answer or
motion for summary judgment
▪ Applies event when defendant has responded with a 12(b)(6) motion or
another Rule 12 motion to dismiss
▪ HOWEVER, 12(b)(6) motion + supporting evidence is treated as a motion
for summary judgment and plaintiff could no longer dismiss as a matter of
right
o (ii) filing a stipulation of dismissal signed by all parties who have appeared
● 41(a)(1)(B) Dismissal will be without prejudice UNLESS, the plaintiff had previously
dismissed the claim in any action in federal or state court. Then it is an adjudication on
the merits.
FRCP 41(a)(2) By Court Order; Effect
● If not the circumstances in 41(a)(1), plaintiff must have a court order to dismiss on terms
that the court considers “proper”
● If not either of those circumstances’ plaintiff must file for court permission
o Court has discretion to dismiss it with or without prejudice
o Voluntary dismissal you only get one without prejudice
▪ The second voluntary dismissal is with prejudice aka on the merits
FRCP 41(b) Involuntary Dismissal; Effect
● If plaintiff non-cooperation; defendant may move to dismiss action or any claim against it
this dismissal and all others that are not—lack of jurisdiction, improper venue, or failure
to join a party under FRCP 19—are adjudications on the merits
● Lack of due diligence on the part of the plaintiff is what triggers the dismissal
o Plaintiff not pushing the case toward trial
● Can be with or without motion from the other side
FRCP 41(c) Dismissing a Counterclaim, Cross-claim, or Third-Party Claim
● This rule applies to these claims too
FRCP 41(d) Costs of a Previously Dismissed Action
● Court can impose costs on the plaintiff for a dismissed action that is refiled after
dismissal
Default Judgment FRCP 55
●
If the party against whom a judgment for affirmative relief has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter
the party’s default
TRIAL (Blue)
Civil Jury Right - Sources/Rules:
●
●
●
Seventh Amendment
○ “In suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,
shall be otherwise reexamined in any Court of the United States, other than
according to the rules of the common law.”
Federal Statutes
FRCP
○ Rule 38 – Procedures for invoking and preserving the right
○ Rule 39 – Procedures for implementing the right at trial
The Law-Equity Distinction:
●
●
●
●
●
1791: Seventh Amendment adopted
Fed. R. Civ. P. 2: “There is one form of action – the civil action”
○ Civil action may seek both damages and injunctive relief
Law = compensatory ($$) damages and ejectment
Equity = all other remedies: injunctions, restitution, rescission/reformation of contracts
“Mixed” law/equity cases
○ The “Clean Up” Doctrine
Mixed Case: Beacon Theatres
●
●
When legal and equitable issues presented in a single case, can’t forfeit the right to jury
trial via prior determination of equitable claims
In mixed case, legal claims should be considered dominant and, except in rare
circumstances, common issues must be tried to a jury
○ Usually they will be tried first
Statutory Case: Terry
●
Test for determining whether action is legal or equitable
○ How would the action have been characterized in 1791?
■ May have to look at “analogous cause of action that existed in the 18th
century”
○ Is the remedy sought legal or equitable?
■ This prong is more important
The Province of Judge & Jury:
●
●
Juries don’t decide all issues raised
○ Judges = questions of law
○ Juries = questions of fact
Markman: Determining whether question is for judge/jury
○ Must particular issue be decided by jury in order to “preserve the essential of the
common-law right of a trial by jury”?
○
Determining which issues are for jury, and which for judge, or “hybrid” questions
■ Begin with “historical method,” seeking analogy between current practice
and historical ones
■ If historical approach is inconclusive, consider
● Existing precedent
● Relative skills of judges and juries
● Statutory policies furthered
■ For hybrid questions of fact/law – functional test
The Phases of Trial:
●
●
●
●
●
●
●
●
●
●
●
●
●
●
Jury Selection
Opening Statements
Plaintiff’s case in chief
Motion for JAML
Defendant’s case
Motion(s) for JAML
Plaintiff’s rebuttal
Closing arguments
Jury instructions
Jury deliberations
Verdict/Mistrial
Renewed Motion for JAML
Motion for New Trial
Motion for Relief from Judgment
FRCP 50 - Motion for Judgment as a Matter of Law:
●
●
●
Rule 50(a): File before case is submitted to the jury after a party “has been fully heard
on an issue”
○ Historically, motion for directed verdict
○ Resolve issue against party and grant JAML against party on claim or defense
Rule 50(b): May renew motion after jurors render verdict
○ Historically, judgment notwithstanding the verdict or JNOV
○ Must be “renewed,” i.e., you filed one pre-verdict, or you waive; may include
alternative/joint motion for new trial
○ Court may allow judgment on verdict, order a new trial, or direct the entry of
JAML
Court may issue sua sponte
The JAML Standard:
●
●
Rule 50(a): “Court finds that a reasonable jury would not have a legally sufficient
evidentiary basis for finding for the party on the issue”
○ Advisory committee says same standard for JAML and MSJ
“Substantial Evidence” rule:
○ SCOTUS said courts should look at “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law” Anderson v. Liberty Lobby
■ Could a reasonable trier of fact find against the moving party?
■ Facts such that there’s only one reasonable result?
●
● Or, could reasonable people reach different conclusions?
Examples: No direct evidence and no eyewitnesses; plaintiff’s testimony extraordinary
Considering the Evidence at JAML:
●
●
●
●
Must look to the entire record
Cannot make credibility determinations or weigh the evidence
Must draw all reasonable inferences in favor of nonmoving party
Disregard evidence favorable to movant unless it’s uncontradicted, unimpeached, and
from a disinterested witness
Post-Verdict Motions:
●
●
7th Amendment:
○ “No fact tried by a jury, shal be otherwise re-examined in any Court of the US,
other than according to the rules of the common law”
50(b):
○ If court denies pre-verdict “is considered to have submitted the action to the jury
subject to the court’s later deciding the legal questions raised by the
motion.”
FRCP 59 - Motion for New Trial:
●
●
●
●
●
●
Implication: parties get a reboot on the trial
Timing: no later than 28 days after judgment
Any party or the court
All or some issues
Standard: “for any reason for which a new trial has heretofore been granted in an action
at law in federal court”
○ Rule 61 – can’t be based on harmless error
Common bases for new trial
○ Legal errors
○ Verdict “against the great weight of the evidence”
○ Incoherent jury verdicts
○ Jury misconduct/improper influence
○ Discovery of new evidence
FRCP 60 - Relief from Judgment:
●
●
●
●
Relieves a party from a final judgment, order, or proceeding
Grounds
○ Mistake, inadvertance, surprise, exusable neglect
○ Newly discovered evidence
○ Fraud, misrepresentation, misconduct
○ Void judgment
○ Judgment is satisfied, released, discharged
○ “Any other reason that justifies relief”
Timing
○ “reasonable time”
○ 1 year for mistake, new evidence, fraud
Other powers
○ Corrections to clerical errors in judgment
○ Independent action to relieve a party from judgment
Preclusion Doctrine
Vocab and Rationale:
●
●
●
●
●
Prevents parties from re-litigating claims, defenses, issues raised in prior action
Policy rationales
○ Promote finality and repose, prevent duplicative litigation
○ Reduce cost, hassle of multiple lawsuits
○ Conserve judicial resources
○ Encourage fairness and reliance on adjudication by preventing inconsistent
decisions
“Res judicata” = claim preclusion
○ Prevents relitigation of claims that have been conclusively resolved
“Collateral estoppel” = issue preclusion
○ Prevents relitigation of certain issues that have been conclusively resolved
Merger and bar
Claim Preclusion: Basic Requirements
●
●
●
●
Applies to claims that were actually asserted or should have been asserted
Same parties
Same claim
Valid, final judgment
Claim Preclusion - “Same Claim”
●
●
●
Transaction test (Rush) - “same wrongful act”
○ Common nucleus of operative facts
Restatement:
○ “All rights of the plaintiff to remedies against the defendant with respect to all or
any part of the transaction, or series of transactions, out of which the action
arose.”
Implications:
○ Claims needn’t be identical - other closely related claims that could’ve been
brought in first suit.
○ No “claim splitting”
Same Claim - Continuing or Renewed Conduct:
●
●
Repeat payments (Jones)
○ Payments due at time suit is filed form part of same transaction for claim
preclusion purposes
■ Payments due after suit is filed are a separate transaction
■ Exception: mandatory acceleration clauses make all payments due at
time of default
Continuing conduct
○ In general, when conduct continues, preclusion won’t apply
Preclusion Doctrine: The Quality of Judgment
●
●
General Rule
○ Only final, valid judgments on the merits have preclusive effect
Finality
○
○
●
●
“One that ends the litigation on the merits and leaves nothing for the court to do
but execute the judgment” (Firestone)
Doesn’t include interlocutory orders (temporary order issued during course of
litigation), preliminary injunction, denial of 12(b)(6) claim, or denial of summary
judgment.
Validity
○ PJ and SMJ
○ Adequate notice to the defendant
“On the merits”
○ Substance of the claim v. procedural or technical matters
Issue Preclusion - Basic Requirements
●
●
●
●
●
Valid, final judgment on the merits
Same (identical) issue
○ Any single, legally relevant question
○ Generally must be identical
Actually litigated and decided
○ Parties fought over issue, presented conflicting evidence
Necessary to the judgment
Same parties***
Binding Parties: The Traditional Approach & Mutuality
●
●
●
Claim and issue preclusion generally require same parties or those in privity
○ Partners, husband and wife, successors-in-interest
Mutuality Doctrine
○ Only parties to a prior action/their privies may can be bound by a prior judgment,
and judgment can only be invoked by parties/privies to the prior action
■ #1: Jones v. Smith; Jones doesn’t own patent
■ #2: Jones v. Taylor
Decline of the Mutuality & Indemnification Anomaly
○ Lawsuit 1: A (driving car) v. B (driving taxi owned by C); B wins on negligence
○ Lawsuit 2: A (driving care) v. C (owned taxi); A wins
DEFENSIVE, NON-MUTUAL ISSUE PRECLUSION
●
●
●
●
●
●
Example
○ #1: P v. D1; P loses based on issue A
○ #2: P v. D2; D2 invokes decision on issue A from #1 as a defense
Plaintiff is repeat player; defendant was not a party to earlier judgment, but is using
preclusion defensively – in response to plaintiff’s allegations
Defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously
litigated and lost against another defendant
Suit #1: Jones v. Smith; Jones doesn’t own patent
○ Suit #2: Jones v. Taylor; Jones is estopped from arguing that he owns patent
Note – non-mutual preclusion implicates issue preclusion
○ Not claim preclusion
Blonder-Tongue (1971) – federal endorsement of non-mutual, defensive issue
preclusion, BUT
○
○
Party resisting preclusion must have opportunity to show lack of full, fair
opportunity to litigate the issue in first lawsuit
Trial court has discretion to deny issue preclusion defense based on “sense of
justice and equity”
OFFENSIVE, NON-MUTUAL ISSUE PRECLUSION
●
●
A new plaintiff seeks to foreclose the defendant from litigating an issue the defendant
has previously litigated unsuccessfully in an action with another party.
#1: Green Giant v. Evil Company; Green Giant Wins
○ #2 Goldilocks v. Evil Company, same pollution
Limiting Offensive Non-Mutual Issue Preclusion:
(Parklane Hosiery Co v. Shore)
●
●
●
District courts have discretion to permit use of offensive, nonmutual collateral estoppel
General rule
○ In cases where P could have easily joined the earlier action, or where application
of offensive estoppel would be unfair, trial judge should not permit
Factors
○ Whether amount in controversy in first suit was nominal
○ Whether judgment in earlier suit was inconsistent with others
○ Whether different procedural opportunities exist that could lead to different result
Basic Preclusion Requirements:
●
●
Claim Preclusion
○ Same parties (or privies)
○ Same claim - transaction test
■ Claim that was brought or could have been brought
○ Valid, Final judgment on the merits
Issue Preclusion
○ Same parties
○ Same issue (identical)
○ Actually litigated and decided
○ Necessary to the judgment
○ Valid, final judgment on the merits
NON-MUTUAL ISSUE PRECLUSION
●
●
Defensive:
○ Repeat plaintiff sues a new defendant who was not party to first action
○ New defendant can use prior judgment against plaintiff as shield
○ #1 Jones v. Smith for patent infringement; Jones doesn’t own patent and loses
■ #2 Jones v. Taylor for patent infringement; Jones loses
Offensive:
○ New plaintiff seeks to foreclose repeat defendant from re-litigating an issue
defendant has already lost on against another party
○ New plaintiff can use prior judgment against defendant as a sword
○ #1 Green Giant v. Evil Company; Green Giant Wins
■ Goldilocks v. Evil Company, same pollution; Goldilocks wins