What Is “Civil Procedure”
Civil Procedure is the steps taken and the methods used in bringing and conducting a civil lawsuit.
It addresses the manner and mode of taking civil lawsuits through the litigation process as opposed to
the rules that govern the substance of the parties’ claims and defenses or the procedural rules that
govern criminal cases.
Study the procedure used to litigate and vindicate those rights
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How you move the case forward
Where you can file claim in what state/judicial district in the state
What tools used to gather information
What happens at trial
3 Different types of rules
1. State procedural rules
2. Federal procedural rules
3. Individual courts have their own set of local rules
Features of Civil Procedure
3 District Features of Civil Litigation
1. An adversarial system of justice- The parties drives the case and present the issues,
facts, and even the law with the judge’s guidance and oversite.
Judge is liken to umpire
When the parties need the judge to resolve something they will file a motion
Motion – A request by one of the parties for the court to decide something. One
side brings the motion, the other gets respond.
The parties bring to the courts attention their positions as to what the courts should
do and why by a written memorandum with supporting facts and law and usually by
an oral argument. The judge may do additional research on their own but often rely
on the argument and research of the parties.
The judge either grants or denies the motion and the case continues.
If it is not settled or dismissed on the motion, it goes all the way to trial.
*If you leave out an important argument of the case, you will lose and would by
clientele for mal practice.
*If you do a bad job enough you can lose your law license.
2. Inquisitive system -The system is primarily used in Europe, France, Italy, Germany,
and Spain.
The judge drives the keys and ask the questions.
The judge can summon and question witnesses.
3. Positive law – our procedural system is based on positive law.
Legislatively creative law as opposed to common law which is judicial created law.
Positive law consist of :
1.the constitution
2. statutes
3. federal rules
Contrasted with common law which is judicially recognized law. Not really created but judges recognize
the common law and judicial process.
4. Goal of judicial system – stated in rule one of the federal rules of civil procedure it is to secure just
speedy and inexpensive determination of every action or proceeding
Source of Law for Civ Pro
Key provisions of the constitution that governs civil procedure.
Art 3 -Subject matter jurisdiction-Power of a court to hear a certain type of case.
Art 4-Full faith and credit clause – when a court in one State must give “affect” to the decision of another
court in another state. It ties into personal jurisdiction and the power of a court to enter a judgment
binding on an individual.
Full faith and credit means they will enforce it.
Personal jurisdiction – refers to power of the court over the persons in front of it.
If court properly had the power to enter a judgment binding upon an individual then under the full faith and
credit clause that judgment can be taken to another state where P may have gone or it can be found and
courts in the state will get full faith and credit to that judgment.
Art 6 -Supremacy clause – federal law is supreme over state law.
If the constitution applies and there is any state law that conflicts with the constitution the constitution
controls.
Constitution trumps state law and when a federal statue is valid and controls it trumps state statue that
reports to deal with the same matter.
make correct purports not reports
A federal statute is valid when it is authorized by the constitution.
In the constitution, the federal government has those powers that are specifically delegated to it. Those
powers that the constitution did not specifically granted to the federal government are reserved to the
states.
Due process clause- It implicates two parts of the constitution.
Fifth amendment – governs the process in federal courts.
14th – made this federal due process obligation at least at a minimum due process level incumbent upon
states and thus state courts.
Governs due process in state courts.
Deals primarily with fairness with fairness with regards personal jurisdiction.
7th amendment – deals with the right to a jury trial
In some but not all cases.
Federal statutes that govern federal courts subject matter jurisdiction.
Subject matter jurisdiction-Deals with when a court has the power to hear a certain type of case.
Federal statutes that govern venue.
Venue- The issue of which US District court assuming the federal courts have subject matter jurisdiction
can hear a case.
Transfer of venue-When you can transfer a case from one federal District Court to another federal district.
Removal of cases-When you can have the US district court over which there is original federal subject
restriction hold up to federal court even though that case was originally filed in state court and even
though the state court may have concurrent jurisdiction meaning it also had the power to deal with it.
The federal rules of civil procedure are drafted/promulgated under the authority of the US Supreme Court.
They are ultimately enacted by Congress.
Not common law.
Under the rules enabling act congress delegated to the Supreme Court the authority to draft and create
the federal rules of civil procedure.
The rule covers matters that are not otherwise covered by the constitution or by the federal procedure
statutes.
* all three sources work together to give us the positive procedural law.
More general (constitution)
More specific (federal statutes)
Most specific (FROCP)
The Supreme Court created a committee of scholars, judges, and lawyers.
They meet periodically to discuss potential changes to the rules.
Each year the committee reviews the existing rules as well to decide whether there should be any
additional changes.
The committee sends its work to the Supreme Court.
If the Supreme Court agrees with the recommendations, then it will pass the recommendations unto
Congress.
The rules enabling act requires submission of any proposed additions or changes to the rules by the court
to Congress by May 1 of each year
Congress then can send the proposed changes back to the court for further changes or can reject the
recommendation.
But, if Congress does nothing with the court’s recommendation by December 1 then any changes or new
rules become effective.
Even though the court promulgates the rules Congress enacts them.
Court Systems
2 different sets of court systems in the U.S.
Every state and commonwealth territory has its own court system.
(2) The federal system –Court in every state
Congress gave Supreme court power to create lower federal courts.
Lower federal courts have limited subject matter jurisdiction
Limited subject matter jurisdiction- Only be able to address and deal with limited types of cases that
were specifically laid out in Art 3 and jurisdictional statutes created by Congress.
Federal courts created to protect favoritism
Each state has a federal District Court. Some have 4
Congress decides where districts are located.
Federal district courts are also courts of limited jurisdiction.
Their jurisdiction is limited to hearing two types.
Cases which involves federal question or diversity.
Federal question cases involve federal law and diversity cases which are cases between citizens of
different states which involved over 75,000 exclusive of interest and costs.
Video 1 Wk 2
The US courts have concurrent jurisdiction if the diversity of citizenship requirements are met.
Diversity Jurisdiction
28 USC $1332 - Original jurisdiction over a state law claim exists in federal district court
when:
1.The amount in controversy exceeds $75 000, exclusive of interest and costs , and
2. The suit is between:
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Citizens of different states (Ex: p=MI ; d=FL)
Citizens of a state and citizens of a foreign state (Ex: p=FL d=France)
Citizens of different states and in which citizens of a foreign state are also parties; and (p=FL
d1=MI d2=France)
A foreign state as plaintiff and citizens of a state or of different states. (p= New Zealand ; d=Nyc)
There are two requirements for diversity jurisdiction.
The P must satisfy the amount in controversy which is greater than 75,000 exclusive of interest in cost.
The P must show diversity of citizenship
There are four ways to show diversity of citizenship
28 USC 1332 Requires “complete diversity” of US parties
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No party on one side of the V may be a citizen of the same state as any party on
the other side
Article 3 requires only minimal diversity- there must be at least one claimant with diverse citizenship
from another.
Alienage jurisdiction exception – the court will not have original jurisdiction of an action between
citizens of a state and citizens or subjects of a foreign state who are lawfully admitted for permanent
resident in the US and are domiciled in the state.
Domicile- the place where one resides with the intent to remain indefinitely.
Foreign citizens with green cards are treated like citizens of the state where they are domiciled when
parties to a suit with a US citizen who is domiciled in the same state.
We assess whether diversity of jurisdiction is satisfied/ whether it exists at the moment the suit is filed.
It does not matter if the parties are no longer a diverse later.
Doesn’t matter if something has changed.
Aka “ The Time of Filing Rule”
Requirements for diversity jurisdiction(diverse citizenship) amount in controversy must
be satisfied at the time the complaint is filed.
Jurisdiction is unaffected by subsequent changes in citizenship of the parties. Citizenship at the time of
filing suit controls not citizenship of a party before or after the date of filing.
Changes affecting the amount in controversy in a lawsuit after the suit is filed does not deprive the court
of jurisdiction.
Can you cure a lack of diversity w/o dismissing the cases?
Sometimes! You can cure a diversity defect by dismissing a non-diverse (i.e kicking them out of the case)
assuming you still have enough diverse parties ( at least on P and one D) to continue the case.
Video 2 Week 2
What is a citizen
To be a “citizen” of a state, a natural person must be both citizen of the US and a domiciliary of that
state.
Domicile – Place of person’s true fixed home and principle establishment
Change in domicile- requires (1) taking up residence in a different state with (2) the intent to remain
there indefinitely (to make the new state one’s home)
Amount in controversy
Court will accept amount stated in the complaint
Week 3 Video 1
Supplemental Jurisdiction
28 usc 1367 provides a way to get into federal court a claim that would otherwise not have an
independent basis for federal jurisdiction (independent subject matter jurisdiction.
State law claims that would otherwise could not be heard by the federal court because they are state
law claims and not federal questions and lack diversity jurisdiction.
How can you hitch your jurisdictionally insufficient (orphan) claim to a claim that does have an
independent basis for federal district court SMJ( an “anchor claim”) so that the anchor claim can pull
the orphan claim into federal court together.
Step 1 : Does the “orphan claim” arise out of the “same common nucleus of the operative fact-same
case or controversy” as the anchor claim” ?_This is called the SCNOOF Test
SCNOOF= Same common nucleus of operative fact
Are the claims so related that they form part of the same case or controversy? Do they arise from the
same transaction or occurrence ?
The orphan claim is so related to the federal anchor claim that they arise out of the same case
or controversy.
Step 1 has two steps –
a. You need an anchor federal claim under 1331 or 1332
b. Need to show that the orphan claim is so related to the anchor claim that the two arise
from the same common nucleus of fact
If no , no supplemental jurisdiction
If yes , proceed to 1367(b)-step 2
Step 2 – Even if you satisfy Step 1, the court CANNOT exercise jurisdiction over the orphan claim
if the answer to ALL the following questions is YES.
1. Is SMJ over the anchor claim based on diversity?
2. Was the orphan claim brought by the plaintiff?
3. Was the orphan claim brought AGAINST a party joined under FRCP 19(compulsory
joinder), 20(intervention-how we can join more than one p or d in a case ) ,
14(impleader interpleader-3rd party def and 3rd plaintiff – case is filed and one of the
parties usually the D uses rule 14 to bring in a 3rd party D), or 24(14,19, 20, 24)?
If you have a case that arises out of the same common nucleus of operative fact as an anchor federal
claim the court cannot exercise jurisdiction if to the answer is yes to all three of the questions.
“If you have one “no”, you’re good to go”
Step 3 – The exercise of supplemental jurisdiction is discretionary with the court. Even if the
orphan claim satisfies 1367(a) and 1367(b), the court may still decline to exercise jurisdiction where:
(court is not obligated to hear the claim. It has the discretion to exercise subject matter
jurisdiction and hear it . It can still decline to exercise jurisdiction over the orphan claim . However, they
have to have good reason and cannot do it on a whim.
a. The orphan claim raises a novel or complex issue of state law
b. The orphan claim substantially predominates over the anchor claim – the orphan claim may
be much more extensive – might take up substantially more of the case time in discovery
and trial might be more than the anchor claim
i. The court will dismiss the orphan claim and the p can refile in state court.
The anchor will continue to go forward in federal court.
c. The court dismissed all the anchor claims
i. The court is most likely to keep the supplemental orphan claim if the anchor
claim is dismissed late in the game(litigation).
d. For other compelling reasonsm- juror confusion
Removal of cases from state court to Federal Court
Removal – taking a case that’s been filed in state court but over which the federak ciurts also have
original subject matter jurisdiction.or what is called concurrent jurisdiction between the state and
federal courts and having the federal court remove the case from state court to federal court
Federal court is the remover or oness
28usc 1441(a)
Any civil action brought in state court over which the federal courts have “original jurisdiction”(ie smj)
may be “removed” “ie transferred to federal court by the defendant
Rules for removalRemoval operates in only on direction- from state court to federal court.
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CANT MOVE A CASE FROM FEDERAL TO STATE
Cant use removal to transfer case from one state to another
Cant be used to transfer from one district court to another
Removal is only avabile to D
All D must consent to removal
There is an exception 28 usc 1441 ©
The court decides based on the facts as they existed at the time of removal whether the action satisfies
the removal requirement (time of filing rule
Whether Federal smj exsit at the time of removsl
28 usc 1441 b “forum Defendant “ rule
(Applies only in diversity cases )
If federal court Smj over the state court would be based on diversity jurisdiction, then the case may not
be properly removed if any defendant is a citizen of the forum state.
28 usc 1441 © excdption mention earlier-
When a federal law claim is joined wih an “otherwise non-removeable” state law claim
Where a state –court action includes a federal law claim and a state- law claim that has no
basis for federal court Smj, the entire action may nevertheless be removed.
However upon removal , the court must sever and remand the claim not within the court’s
jurisdiction.
In such a case, only the defendants to the federal law claim need join in or consent to the
removal.
Removal Procedure 28 usc 1446
(1)If D wants to remove a case the d first drafts a motion called a notice of removal
Notice of removal – contains a short and plain statement of the grounds for
removal signed pursuant to rule 11(-Rule of procedure that is an ethics rule that requires any
document sigend and submitted to the court is done so in good faith and with a belief that all
the representations in the document are true . You must to unitied states district court a copy
of all process pleadings , order served upon d )
(fact and circumstances that entitle d to a removal)
(2)A copy of all process, pleadings and order served upon D up to the point of removal
D must serve copies of above on the state court and all parties
No motion is required, nor must d obtain consent of the court or the p to remove the case
*Once the case is removed,, P will get the opportunity to file a motion asking the
court to remand to state court .
The motion is called a motion for remand.- motion asking the federal court to send the case back to
state court
D’s notice of removal must be filed within 30 days
1. D’s receipt of the initial pleading or summons in the case or
2. D’s receipt of a pleading, motion, order or other paper from which it might first be
determine d that the case is removable . Except that D cant remove on the basis of diversity
jurisdiction more than one year after commencement of the action
This is the second special limitation we’ve seen applicable only to diversity cases !!
28 usc 1446b(2)©
An exception to 30 –Day Time Limit for removal
If there are multiple defendants in a lawsuit who are served with process at different
times, and a later-served defendant files a timely notice of removal, any earlier-served
defendant may consent to removal even though he didn’t previously initiate or consent to
removal.
Proper Venue for removed cases Venue- Which court is the proper one to hear a case-
Cases can be removed only to the federal district court located in the same judicial district and
division where the state court action was filed.
Procedure for Remand 2 8USC 1447.
If P belives removal was improper p files motion to remand the case back to state court – P may
files a motion to “remand” the case back to state court if P believes removal was improper.
A motion for remand based on any defect other than smj must be made within 30 days after the
notice of removal is filed.
A motion for remand based on lack of smj can be made any time before final judgement.
Can even brought up on appeal.
Court can order the improperly removing party to pay costs incurred as a result of improper
venue.
Week 4 notes
Personal Jurisdiction
In order to go forward with a case in federal court, we have to satisfy three requirements. First,
the court must have subject matter jurisdiction over the claims presented. Second the venue
must be proper meaning we must be in the correct united states district court. Finally the court
must have personal jurisdiction over the defendant.
In order for the court to be able enter a judgment binding against the litigant. The court must
have proper power to enter such a judgement.
Personal Jurisdiction- The power of the court to issue a judgement that is binding on the
litigants before it or that affects a party’s property.
When is it constitutional for a court’s judgement to bind a person or affect his property.
The law of personal jurisdiction focuses on the constitutionality of the courts power over the
litigants
The constitutionality of a court’s exercise of personal jurisdiction focuses on the due process
clause of the constitution.
No person shall be “deprived of life, liberty or property without due process of law”(is it fair?)
When is it fair to require a party to appear in court in a particular state and be subject to the
power of that court.
When is it reasonable to have a court in a particular state have the power to render a judgement
that will be binding against that party.
A question of in which state can the p file a lawsuit . Which state or states have the power over
the litigants and the power to enter a binding judgement
The court should have personal jurisdiction over the person when they are domiciled in that
state.
State Sovereignty is the most important thing
Every state possesses exclusive jurisdiction
and sovereignty over persons and property
within its territory,
• No state can exercise jurisdiction over persons
or property outside its territory..
A state had power over everyone and everything within its borders. If a person was in a
state then the state via its courts have power over the person for any suit for any reason.
Pennoyer v Neff
A court has PJ over a person who is personally served with process while in the forum state (in
personam).
Someone actually hands the litigant the summons and complaint, the document that compiles the
lawsuit in the jurisdiction the forum state in which the case was filed. The forum state is the state in
which the lawsuit gets filed. In essence we found you in the state and we served you in the state
If person can't be served in forum state, BUT has PROPERTY in the forum state, court can exercise PJ
up to the value of the property If forum state property is "attached" at the beginning of the suit (in rem or
quasi in rem). Notice of suit can be by publication. (ex: could do it in the newspaper)
Attached- P filed paperwork that would give the court in effect a temp hold on the property
pending the outcome of the suit. Dealing with someone who is not physically present in the forum state
but has a connection to the forum state by virtue of owning property there.
If a person is not in the state but has property in the state the court can exist power in the case over the
property owed by the out of state defendant. That is in rem jurisdiction.
By virtue of owing property in the state , the court can allow exercise pj over the individual but only up to
the value of the property . That is quasi in rem jurisdiction.
What's the difference between"in personam" jurisdiction and "in rem" jurisdiction?
In Personam - Power over the PERSON
*the court has the power over the person of the defendant. Court could render a judgement for
the full amount of damages the p can prove
In Rem - Power over a person's PROPERTY
*The court has power over the property of the D. The courts power to render a judgement is
limited to the disposition/ value of the property located in the state.
*dispute over rights to the property, who has title to it , who may have some right to use it
Quasi in rem- A situation where the dispute does not involve the property but the p is attempting to use
the property to get jurisdiction for a lawsuit against the owner of the property over a matter that’s not
related to the property at all.
And Furthermore...
+ A person can CONSENT to PJ.- can consent to personal jurisdiction in any court and then pj is
consistent with the due process clause.
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Don’t worry about the pj of the p because the p in choosing the forum court to bring
suit has in effect consented the court’s personal jurisdiction.
• A person can WAIVE an objection to PJ (by acting in a way that is inconsistent with the objection).
Example- just showing up and defending the case , not raising and objection, failure to object would
constitute a waiver of the objection to the courts lack of personal jurisdiction.
A defendant who has an objection jurisdiction should raise it in their first response to the complaint. If
they don’t make that objection in their
A state may determine the status or Its citizens towards a non-resident without service of process.
And Furthermore..
A state may require a non-resident entering into a partnership or making contracts enforceable in the
state to appoint an agent to receive process.
Post-Pennoyer Expansions
• Courts have PJ over a person for all purposes in his/her state of domicile, even if the person isn't
personally served in the forum state. (Milliken v Myer)
• Courts have PJ over a corporation for all purposes in its state of incorporation.
• Consent to PJ can be implied, and states ca v n enact statutes that create implied consent.
• There is PJ over a corporation if it is "present" in forum state (lots of activity in the state).
Video 2
PJ Rules Before Inter. Shoe
› PJ (in personam) where person is domiciled or where corporation is incorporated.
› PJ (in personam) if person served in forum state.
PJ (in personam) over corporation if it is"present" in forum state (lots of activity in the state).
PJ by consent (express or implied by statute) or waiver.
> In rem (or quasi in rem) where property inforum state is attached pre-suit.
International Shoe
Introduced the "Minimum Contacts Test"
To subject a defendant to in personam jurisdiction, there must be "certain minimum contacts with the
forum such that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice
The Minimum Contacts Test
For Contacts With The Forum State To Count To Count for Purposes of PJ, They Must Be "Purposeful"
Did the defendant “purposefully avail itself Of the opportunity to engage inactivity in the forum State?
The Minimum Contacts Test
General Personal Jurisdiction
A court of may exercise PJ over a defendant whose purposeful contracts with the forum state are so
systematic, continuous, and substantial that the defendant may fairly be said to be"at home".
Where such contacts exist, courts of the forum state may exercise PJ over the defendant for ANY cause
of action, whether or not the cause of action is related to the contacts with the state.
The Minimum Contacts Test
Specific Personal Jurisdiction: A Two-Step
Analysis
A court may exercise PJ over a defendant where:
1. The defendant has a purposeful contact with the forum
state, and the cause of action ARISES OUT OF OR
RELATES TO that contact; AND
2. The exercise of PJ is REASONABLE, as determined by
an analysis of the following "reasonableness factors:
> Burden on the defendant:
> Convenience to the plaintiff;
> Interest of the forum state;
> Efficiency of the forum court; and
> Substantive social policy.
The Minimum Contacts Test
Why Does the Minimum Contacts Test Satisfy the
Requirements of the Due Process Clause?
IF YOU'RE THERE, ITS FAIR!!!
Reciprocity Rationale
Predictability Rationale
Volitional focused choice
• A person can CONSENT to PJ.
• A person can WAIVE an objection to PJ (by acting in a
way that is Inconsistent with the objection).
What type of contact is required in order to support personal jurisdiction?
Specific PJ
All It Takes is a Touch...(aka all you need is a very minimal contact –one contact so long as it is
purposeful)
A party's single or isolated item of activity in the forum
state is enough for jurisdiction where the case arises out
of or relates to that very item of activity AND the exercise
of jurisdiction is "reasonable".
Direct contact – The D is in someway physically reaching out to or touch the state/direct physical
contact of some sort
Ex- D ships product into state and it causes injury or D advertises in the forum state and
the p in response to that ad purchases the product and is then injured by the product.
What About A "Virtual" Contact?
A virtual contact can be enough !
The Calder "Effects Test"
When a party, takes an action in one
state with the intent that it will have
an effect on the plaintiff in the forum state, the party has made a
purposeful contact with the forum
state.
Another Kind of "Virtual" Contact
The Stream of Commerce Theory
If a defendant drops its product into the stream of commerce with the expectation that it will be swept into
the forum state, that expectation can give rise to a
purposeful contact sufficient to support jurisdiction, provided the rest of the "specific jurisdiction"
requirements are satisfied.-only establishes a purposeful contact then have to ensure that the claim would
arise out of or relate to purposeful contact . If it does then you to make sure that the exercise of
jurisdiction is reasonable after the analysis of the reasonablenesss factor
Supreme Court Split (Asahi)
Brennan: Defendant needs only
AWARENESS that its products will end up in the forum state to create a purposeful contact.
O'Connor: Awareness alone is not enough to create a purposeful contact. Must also be "purposefully
directed activity" towards the forum state.
Can a Contract Be A Contact /provide basis for establishing specific personal jurisdiction?
A contract BY ITSELF is not enough to establish minimum
contacts sufficient to support PJ. Instead, the court must
evaluate to following to assess sufficiency of contacts:
Prior negotiations
> Contemplated future consequences
> Parties actual course of dealing
Terms of contract- forum selection clause is expressed consent to the personal jurisdiction of the court of
a particular state. If you don’t have a selection clause then you may look to other terms and to determine
whether the parties intended in some way for there to be personal jurisdiction in the forum state or
whether the terms of the contract contribute to the identification of contacts with the forum state suffuicent
to support personal jurisdiction
For specific jurisdiction to raise out of or relate to the d’s activity in the forum state
A claim can relate to D’s activity even without a casual relationship
"Virtual" Contacts
The Internet
Zippo Mfg v Zippo Dot Com
Where D contracts with residents of state through website that
involves knowing transmission of computer files, PJ is proper.
Where website is merely passive, no PJ based on residents' ability
to log onto website.
Where website is interactive, PJ is determined by examining level,
interactivity and commercial nature of info exchanged on the
website - is activity "aimed" at forum state?
General PJ
Very Limited Circumstances
Effect test Stream of commerce and virtual contact do not apply
If you have gpj the court can exercise jurisdiction over the party for every and any case filed in that
Jurisdiction. It does not matter if the events which gave raise to the cause of action took place
somewhere else. If a court in the forum state has gpj over the d then that court can hear the case and
enter a judgement binding on that d. Both federal n state court in that state
A court may exercise GENERAL PJ over a defendant where the
defendant's purposeful contacts with the forum state are so
SUBSTANTIAL, SYSTEMATIC, and CONTINUOUS that the defendant may be said to be AT HOME in
the forum state.
>
State of Domicile for a Person.
> PPB and State of Incorporation
for a Corporation.
Question – does purposeful have to be continuous /ongoing activity or in an ongoing basis
Tag jurisdiction and how it is affected
What is a "Long Arm Statute"?
"Long-Arm Statute" allows a state to reach out beyond its borders to bring a non-resident defendant into
its courts to answer to a lawsuit
Long Arm Statutes
The Due Process Clause of the Federal Constitution sets the
OUTER BOUNDARIES for PJ for both state and federal courts.
States confer PJ authority on their courts through their Long Arm
Statutes.
Long Arm Statutes can confer AS MUCH PJ authority on state
courts as the Due Process Clause allow, or LESS, but not MORE.
Long Arm Statutes
1.What is a "limiting" long arm statute?
A limiting long statue is one that does not give courts of the state the full amount
of personal jurisdiction authority permitted under the due process clause.(gives less)
Ex:A limited long arm will always be an enumerate act
2.What is a "non-limiting" long arm statute?
A nonlimiting long arm statue is one that gives the full amount of personal jurisdiction authority permitted
under the due process clause to the courts of the state.
3. What is an "enumerated act" long arm statute?
One that lays out the specific circumstances under which the court can exercise personal jurisdiction. It
spells out when and how a court can exercise that jurisdiction and bring that party to court as opposed to
a more general statue
Long Arm Statutes
A Long Arm Statute isn't necessary for a court to be able to exercise PJ over:
A person domiciled in the forum state;
A corporation that is incorporated in the forum state;
A party who has consented to PJ in the forum state;
A party who has failed to timely object to the court's exercise of PJ (i.e., waiver);
A person who is served with process in the forum state.
Long Arm Statutes
If none of the circumstances on the preceding slide exist, however, THEN you must determine whether
the Long Arm Statute permits courts of that state to exercise personal jurisdiction over the party.
If the Long Arm Statute DOES NOT provide for PJ, then
the state court CANNOT EXERCISE PJ.. even if the
Due Process Clause would otherwise allow it.
Long Arm Statutes
If the Long Arm Statute DOES permit the court to
exercise PJ, then the court may do so... PROVIDED THAT the exercise of PJ does not exceed the
authority given by the Due Process Clau
You will need to conduct a "minimum contacts" analysis to ensure that the exercise of PJ is consistent
with the Due Process Clause.
Long Arm Statutes
If the Long Arm Statute is non-limiting, then the court may exercise PJ as long as the "minimum contacts"
test of the Due Process Clause is satisfied.
Long Arm Statutes
FRCP 4(k)(1)(A): A federal court may exercise PJ only
to the same extent as the state courts in the state in
which the federal court sits.
Exceptions:
*Federal statute providing for nationwide service of process (such as the Federal Interpleader Statute, 28
USC $1335).
*FRCP 4(k)(2): PJ over aliens with a federal law claim.
*100-Mile 'Bulge' Rule.
CIVIL PROCEDURE I
NOTICE
How to Serve a Defendant With a Lawsuit
Constitutional Requirement
The Due Process Clause requires that deprivation of life, liberty or property by adjudication be preceded
by NOTICE and the OPPORTUNITY TO BE HEARD
The Constitutional "Bare Minimum"
Even if requirements for personal jurisdiction are met,a court CAN'T EXERCISE PJ over a person unless
that person has received PROPER NOTICE of the lawsuit.
It wouldn't be fair for a court to enter a judgment against someone who hasn't beeninformed that he's
been sued!
The Constitutional "Bare Minimum"
Mullane v Hanover Bank & Trust
Notice must be reasonably calculated to inform interested parties of the action, must reasonably convey
the required information, and must give them a reasonable opportunity to appear and defend.
Mullane
"The means employed must be such as one desirous of ACTUALLY INFORMING the absentee might
reasonably adopt to accomplish it"
The Constitutional "Bare Minimum"
Although Mullane requires notice reasonably calculated to reach the defendant, it also authorized
service by the BEST MEANS AVAILABLE (possibly publication) in situations where individual notice is
impracticable.
FRCP 4
Sets out the procedure for notifying a defendant that a federal civil lawsuit has been filed against him
through service of process.
FRCP 4(a)-(c): Summons
Form of Summons is standardized in Federal Court See Federal Court Form A0440.
Summons and Complaint must be served together on the defendant after the Complaint is filed.
FRCP 4(a)-(c): Summons
Plaintiff is responsible for preparing the summons in
the appropriate form and for achieving effective service on the defendant.
The process server may be any adult who is over the age of 18 and is not a party.
Service on Individuals in U.S.
Formal service of process on a competent adult in the
U.S. can be made:
Pursuant to State law.
By personal service.
By leaving at defendant's home with person of suitable age and discretion who resides there.
By leaving with an authorized agent.
Service on Corporations in U.S.
Formal service of process on corporations,partnerships, or
associations in the U.S. can be made:
Pursuant to State law.
On an officer, managing agent, or general agent.
On an agent authorized by law or appointment to accept service of process.
FRCP 4(d): Waiving Formal Service
Defendant is encouraged to waive service of the summons if requested by plaintiff to avoid unnecessary
cost.
Waiver of service of the summons does NOT result in a loss of the right to contest PJ, SMJ, or venue;
only the right to contest the method of service is waived.
FRCP 4(d): Waiving Formal Service
Incentive to Waive: Defendant gets 60 days after request for waiver was sent to answer Complaint - 90
days if not in U.S. (instead of usual 21 days under FRCP 12(a).
Penalty for Refusal to Waive without Good Cause: Defendant assessed costs of formal service, plus any
attorneys fees incurred by P to recover said costs from Defendant.
FRCP 4(d): Waiving Formal Service
Plaintiff's request that Defendant waive service must be in writing,
addressed to Defendant, and include a copy of the Complaint (see Federal Court Form A0398).
Plaintiff must give Defendant at least 30 days from the date request was sent to return the waiver form
to Plaintiff (60 days if
outside US), using Federal Court Form A0399.
Service is complete when Plaintiff files the completed Form A0399 with the Court.
FRCP 4(m): Time Limits for Service
Process must be served within 90 days after the Complaint is filed with the Court.
Time limit may be extended for good cause shown.
Venue
Which court in a particular state when in state system, or which particular judicial district when
in federal system is a proper court to hear a lawsuit.
There is often more than one place that can be a proper venue.
There are three things a court must have in order to hear a case.
The court must have subject matter jurisdiction over the case, personal
jurisdiction over the parties (focuses on an entire state) and the venue must be proper.
Venue is a creature of statute - It tells you which of the often several courts with PJ and SMJ can
adjudicate the lawsuit. Focus of venue statutes is CONVENIENCE.
If in state court you look to state statute, if the federal court looks to federal venue
statues.
General Federal Venue Statute 28 USC $1390(defines venue)
"The term ‘venue' refers to the geographic specification of the proper court or courts for the
litigation of a civil action that is within the SMJ of the district courts”
Venue: 28 USC $1391(describes the different alternatives) The general federal venue statute
provides for two primary alternatives and a "fallback"
ALTERNATIVE #1 - $1391(b)(1) The "Residency Alternative" Venue is proper in a judicial
district where any one defendant resides, IF all defendants reside in the State where the district is
located.
Venue: 28 USC $1391 How Do You Determine Where a Defendant “Resides" for Purposes of
Venue?
DOMICILE: For a "natural person" (including alien with permanent residence in U.S.)
CONSTITUTIONAL PJ ANALYSIS (GPJ,SPJ):For corporations, partnerships, and
unincorporated associations (treat district like a state for purposes of the minimum contacts PJ
analysis).
Venue: 28 USC $1391 How Do You Determine Where a Defendant "Resides" for Purposes of
Venue?
An alien without permanent U.S. residence are deemed to reside, and can be sued, in ANY
judicial district, and when joined with other defendants shall be disregarded for purposes of
venue analysis under the Residency Alternative.
If the only defendant in a suit is a foreign citizen permanent us residence then venue is
proper in any judicial district in the United States. If you join a foreign citizen who is not a
permanent resident in lawsuit with United state citizen, then you disregard residency for the non
resident alien
Venue: 28 USC §1391 ALTERNATIVE #2 - $1391(b)(2) The "Events Alternative" Venue is
proper in a judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject of the action is situated.
Venue: 28 USC §1391 ALTERNATIVE #3 - §1391 (b)(3) The "Fallback Alternative" If venue
can't be found anywhere in the U.S, under either of the first two venue alternatives, then (and
ONLY then) venue is proper in any judicial district in which any defendant is subject to personal
jurisdiction with respect to the action. APPLIES ONLY WHEN:
1.No substantial part of the events happened in the U.S.;
2. There are multiple defendants; AND
3.Defendants do not reside in same state.
Federal Transfer Statutes –Allows the transfer of the case from one federal district court to
another
Switching Courts…
Both State and Federal Judicial Systems Have Statutes and/or Rules that Allow for Transferring
Cases from One Court in That System to Another court in that same system
When Venue is WRONG!!
28 USC $1406 Where venue is improper, a federal district court "shall dismiss, OR if it be in the
interests of justice, transfer" the case to any district or division in which it could have been
brought. (brought meaning smj is met, pj is met,n proper venue)
It is a remedy.
When Venue is WRONG!
When a Case is Transferred Pursuant to 28 USC 1406, the "Choice Of Law" Rules of the NEW
Judicial District Will Govern the Case
When Venue is INCONVENIENT!
28 USC $1404(a) "For the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division where it might have
been brought OR to any district or division to which all parties have consented."
Is Another Court More Convenient?
Private Interest Factors Plaintiff's choice of forum (weighted heavily).
Defendant's choice of forum.
Whether claim arose outside of forum .
Convenience of parties and witnesses.
Ease of access to sources of proof.
Other factors that make trial easy, expeditious, and inexpensive.
Is Another Court More Convenient?
Public Interest Factors
Transferee court's familiarity with the governing law.
Relative congestion of transferor and transferee court dockets.
Local interest in having local controversies decided at home.
When Venue is INCONVENIENT
When a Case is Transferred Pursuant to 28 USC 1404(a), the "Choice Of Law" Rules of the
OLD Judicial District Will Govern the Case
Transfer Statute Limitation...
IMPORTANT NOTE Federal transfer statutes ONLY WORK to transfer a case from one federal
district court to another federal district court.
Federal Transfer Statutes ANOTHER IMPORTANT NOTE
Both plaintiffs and defendants can use the federal transfer statutes to seek transfer of the case
from one federal district court to another.
When might a PLAINTIFF - who CHOSE where to file her case - want to use a transfer statute
to transfer that case to a different federal court?
When Venue is INCONVENIENT!
What if there is a more convenient venue for a properly filed case, but TRANSFER to that venue
is NOT AN OPTION?
Forum Non Conveniens
The defendant can file a motion to DISMISS the lawsuit on grounds of "forum non conveniens"
(forum not convenient)!
Forum Non Conveniens
A "forum non conveniens" motion to dismiss may be granted ONLY IF the plaintiff is able AS A
MATTER OF LAW - to refile her lawsuit in the more convenient forum.
Forum Non Conveniens
Must waive
To obtain a forum non conveniens dismissal, a Defendant must satisfy two requirements:
1) He must show that another adequate forum is available; AND.
2) He must show that considerations of party and forum convenience override the plaintiff's
choice of forum and justify dismissal.
Forum Non Conveniens
The VERY SAME Private and Public Interest Factors that Courts Consider in Applying 28 USC
1404(a) are Weighed by the Court in Deciding the Forum Non Conveniens Motion. THE
QUESTION Does the CONVENIENCE of the Defendant's proposed forum OUTWEIGH the
Plaintiff's Choice of Forum?
Is another court more convenient?
Private Interest Factors Plaintiff's choice of forum (weighted heavily).
Defendant's choice of forum.
Whether claim arose outside of forum.
Convenience of parties and witnesses.
Ease of access to sources of proof.
Other factors that make trial easy, expeditious, and less expensive.
Is Another Court More Convenient?
Public Interest Factors
Transferee court's familiarity with the governing law.
Relative congestion of original and alternative court dockets.
Local interest in having local controversies decided at home.
Re-Filing After FNC Dismissal
When a Case is Re-Filed in the NEW forum after a forum non conveniens dismissal, the
"Choice Of Law" Rules of the NEW forum Will Govern the Case
Forum Non Conveniens ANOTHER IMPORTANT NOTE
ONLY DEFENDANTS can seek a forum non conveniens dismissal of a case. Not something a
PLAINTIFF is likely to want anyway!!
Week 9
The erie doctrine is a choice of law doctrine (state law claim being heard in Fed court)
The Issue
When you have a STATE LAW CLAIM pending before a FEDERAL COURT, which law do you
apply - state law or federal law?
Under what circumstance is a FEDERAL court faced with deciding a STATE LAW
claim?(Subject matter jurisdiction or supplemental jurisdiction when state claims arise out the same
nucleus of common fact as anchor)
The "Simple" Answer
When you have a STATE LAW CLAIM pending in FEDERAL COURT, you must apply:
STATE Substantive LAW
AND
FEDERAL PROCEDURAL LAW
The "Hard" Question
What's the DiFFERENCE Between
SUBSTANTIVE Law and PROCEDURAL Law
Definitions
SUBSTANTIVE LAW: The law that determines whether a party has a claim cognizable(viable) in a court
and whether the opposing party has a legal defense that bars such a claim on the merits.
PROCEDURAL LAW: The law that governs the "manner and means by which a right to recover is
enforced."(law that governs the way the suit goes forward/ way you go through litigation process in court)
*SoL is an example of law that doesn’t specifically meet one mold.
The Erie Analysis
STEP ONE
Are you dealing with a STATE LAW CLAIM pending in FEDERAL COURT?
The Erie Analysis
STEP TWO
Is there a CONFLICT in the lawsuit between a STATE LAW rule and a FEDERAL LAW rule?
(so sufficiently different that they conflict and you have to apply one or the other)
The Erie Analysis
STEP THREE
What is the SOURCE of the FEDERAL LAW that is causing the CONFLICT?
*Consititution
*Federal Statue in the US Code
*Federal Rule of Civ Pro
*Federal Common Law or judicial practice (some rule or practice particular to the local district
court.
The Erie Analysis
STEP FOUR- A
If the SOURCE of the FEDERAL LAW causing the CONFLICT is a CONSTITUTIONAL PROVISION,
then...
FEDERAL LAW WINS
(Always)Apply the Constitutional Provision
The Erie Analysis
STEP FOUR - "B"
If the SOURCE of the FEDERAL LAW causing the
CONFLICT IS a FEDERAL STATUTE, then..
FEDERAL LAW WINS ……. but
ONLY if the statute is CONSTITUTIONAL(ex: art 3 gives congress the power to create the rules that will
govern procedure in federal courts )
If it is.
Apply the Federal Statute
The Erie Analysis
STEP FOUR - "C”
if the SOURCE of the FEDERAL LAW causing the CONFLICT is a FEDERAL RULE OF CIVIL
PROCEDURE, then...
Apply the Federal Rule, but
ONLY if it is:
(1) Within the scope of the
Rules Enabling Act, and…
(2) Otherwise constitutional.
The Erie Analysis
Is the Federal Rule of Civil Procedure Within the Scope of the Rules Enabling Act?
Rules enabling act-Procedural statute that congress passed that gives the Supreme Court the power to
create Federal rules to govern procedure .The Supreme court has an appointed committee that
recommend rules . The supreme court than approves rules that it like and sends the ones with its
approval to Congress. If Congress does not act within the specified period of time those rules become law
And the force of statute because they have been created.
"The Supreme Court shall have the power to prescribe general rules of practice and procedure ….for
cases in the United States district courts."
"Such rules shall not abridge, enlarge, or modify any substantive right.”
THERE IS A VERY STRONG PRESUMPTION IN FAVOR OF THE
VALIDITY OF THE FEDERAL RULE!
Meaning as long as the rule of Federal procedure that you are considering really regulates procedure
meaning really regulate the manner and mode of moving a case though the system then it falls within the
scope of the rules enabling act.
The Erie Analysis
STEP FOUR - "D"
If the SOURCE of the FEDERAL LAW causing the CONFLICT is a JUDICIAL PRACTICE or JUDICIAL
COMMON LAW, then
Outcome Determinative Test
Apply the STATE LAW if applying the Federal Law would likely change the outcome of the case in a way
that would encourage forum shopping
UNLESS…
there is a strong, countervailing federal interest in applying the Federal Law.
CIVIL PROCEDURE I
PLEADING
in Federal Court
What is a "Pleading"?
A "pleading" is a document filed with the court that purports to state the claim of a party or the defense
to that claim.
The Primary Purpose of Modern Pleading is to give NOTICE of the
parties' claims and defenses to
other parties and to the court.
What is a "Pleading"?
A pleading asserts the FACTUAL ALLEGATIONS that support the party's claims or defenses.
Actual EVIDENCE supporting the claim/defense is not generally required at the pleading stage.
A party is generally required to
PLEAD whatever the law requires
them to PROVE in order to win
the case.
Pleadings in Federal Court
FRCP 7(a) lists the Permissible Pleadings:
Complaint
Answer
Answer to a Counterclaim
Answer to a Crossclaim
A Third-Party Complaint
A Third-Party Answer
Reply to an Answer (if ordered)
Pleadings that State a Claim
FRCP 8(a): A Pleading that States a Claim Must Include..
A short, plain statement providing the grounds for the court's SUBJECT MATTER JURISDICTION.
A short, plain statement of THE CLAIM showing that the pleader is entitled to relief.
A DEMAND FOR RELIEF that the pleader seeks.
FRCP 8(d), (e) - More Rules...
Allegations in a pleading must be SIMPLE, CONCISE, and DIRECT.
A party can plead claims and defenses IN THE ALTERNATIVE, and can state AS MANY CLAIMS AND
DEFENSES AS HE HAS, REGARDLESS OF CONSISTENCY.
NO TECHNICAL FORMS OF PLEADING OR MOTIONS ARE REQUIRED, and all pleadings will be construed
so as to do justice.
FRCP 8(a) - Stating a Claim
How Do You Properly "State A Claim"?
Factual allegations must be enough to raise a right to relief above the speculative level.
Not enough to allege facts showing that the claim is possible; must state enough facts to show that it is
plausible on the face of the pleadings.
Statement of the claim requires more than "labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do." (Bell Atlantic v Twombly)
FRCP 8(a) - Stating a Claim
What is a "Formulaic Recitation of the Elements"?
Example: Negligence Claim
Defendant owed a legal duty to Plaintiff to exercise reasonable care.
Defendant breached that duty.
Defendant's breach caused physical injury and emotional distress to Plaintiff.
Defendant's breach was the proximate cause of Plaintiff's aforementioned injury.
FRCP 12(b)(6) - Failure to State a Claim
In deciding a Motion to Dismiss for Failure to State a Claim, a Court Will...
Identify allegations in Complaint that are "merely conclusory" and
disregard them - these are not entitled to a presumption of truth.
Review the well-pleaded factual allegations that remain, assume
they are TRUE for purposes of the motion ONLY.
Drawing on the court's judicial experience and common sense,
determine whether the factual allegations plausibly give rise to an entitlement to relief.
FRCP 10: Form of Pleading
Every pleading must include a CAPTION that sets forth the name
of the court, the title of the action, the court file number, and a
pleading designation.
All allegations must be made in numbered paragraphs and the
contents of each paragraph should be limited to a statement of a
single circumstance. Each separate and defense should be
stated in separate counts or defenses.
Statements in a pleading may be adopted by reference;
documents attached as exhibits will be deemed a part of the
pleading for all purposes.
FRCP 9(b): Pleading Special Matters
In alleging Fraud or Mistake, a party must STATE WITH PARTICULARITY the circumstances constituting
fraud or mistake.
How do you "state with particularity"?
With regard to fraud and mistake, Rule 9(b) generally requires the "who, what, when, where, and how"
to be pleaded.
When a Complaint charges fraud, it must (1) detail the statements that the plaintiff contends are
fraudulent, (2) identify the speaker, (3) state where and when the
statements were made, and (4) explain why the statements
are fraudulent.
Responding to the Complaint
There are two possible options available to the Defendant under the FRCP for responding to the
Plaintiff's Complaint.
1) The defendant could file an Answer (a "pleading" - the usual approach), OR…….
2) The defendant could file a
"pre-answer motion" under
FRCP 12, in lieu of an Answer (if available).
NOTE: The Defendant must respond to the Plaintiff's complaint in a timely way or a default judgment
will likely be entered against him.
What is a Motion?
A "Motion" is the Vehicle through which a Party Requests Court Action
A Court acts through its Orders. A "motion" is a request to the
Court for an Order [see FRCP 7(b)].
In contrast, a "pleading" is a document that sets forth the claims of a party, or a party's response /
defenses to another party's claims. Pleadings do not seek or generally result in immediate court action.
Timing of the Response…
FRCP 12(a) provides that a Defendant must file an Answer to the Complaint:
Within 21 days after being served, OR
Within 60 days after the request for waiver of service, if
Defendant agreed to waive formal service under FRCP 4(d)
(90 days if Defendant is outside United States).
A Pre-Answer Motion must be filed BEFORE the time for filing an Answer to the Complaint.
Pre-Answer Motions
FRCP 12 Provides for Three Types of Pre-Answer Motions
Motion asserting any of the FRCP 12(b) defenses
Motion for More Definite Statement
Motion to Strike
FRCP 12(b) Defenses
Under Rule 12(b), all defenses must be asserted in the first responsive pleading. However, these seven
defenses may alternatively be made by Pre- Answer Motion (to Dismiss).
- Lack of subject matter jurisdiction
- Lack of personal jurisdiction
- Improper venue
• Insufficiency of process
- Insufficient service of process
- Failure to state a claim upon which relief can be granted
- Failure to join a necessary party under Rule 19
Waiver of FRCP 12(b) Defenses
These Defenses are WAIVED if not asserted in the Defendant's First Response to the Complaint (whether
a Pre-Answer Motion or an Answer)
Lack of Personal jurisdiction
Improper Venue
Insufficient Process
Insufficient Service of Process
Waiver of FRCP 12(b) Defenses
These defenses are NOT waived if not asserted in the Defendant's First Response to the Complaint
Lack of SMJ can be raised any time before final judgement
The other non-waivable defenses
can be asserted in any pleading, by
motion for judgment on the pleadings, or at trial.
- Lack of Subject Matter Jurisdiction
-Failure to State a Claim
- Failure to Join a Necessary Party
judgment.
Motion for More Definite Statement
FRCP 12(e)
"A party may move for a more definite statement of a pleading...which is so vague or
ambiguous that the party cannot reasonably prepare a response”
Motion to Strike
FRCP 12(f)
"The court may strike from a pleading an insufficient defense or any redundant, 'immaterial,
impertinent, or scandalous matter”
May be asserted by the DEFENDANT in a Pre-Answer Motion, OR may be asserted by the PLAINTIFF in a
Motion to Strike parts of the Defendant's Answer. Court may also strike sua sponte.
ONLY ONE Pre-Answer Motion
FRCP 12(a)
A Defendant May File ONLY ONE Pre-Answer Motion
Defendant must join all Rule 12 defenses to be asserted in a Pre-Answer Motion together in that ONE
MOTION.
Re-Start of Obligation to Answer
A Pre-Answer Motion may or may not result in dismissal of the
Complaint. The seven defenses listed in Rule 12(b) all warrant
dismissal, though "improper venue" may result in transfer.
If a Pre-Answer Motion does NOT result in dismissal of the Complaint, then the Defendant MUST FILE AN
ANSWER to what remains of the Complaint
within 14 days of disposition of the motion.
One More Rule 12 Motion….
Motion for Judgment On the Pleadings
This is NOT a Pre-Answer Motion
* A Motion for Judgment on the Pleadings is filed AFTER the
pleadings are "closed," meaning all required pleadings have been
filed, and the movant believes the pleadings alone reveal a basis
for dismissal.
The standard for granting this motion is similar to that for a Rule
12(b)(6) motion - both motions tests the sufficiency of the
pleadings. Extrinsic evidence is not considered.
FRCP 55
Default Judgment
FRCP 55: Default Judgment
The Concept
If a Defendant FAILS TO RESPOND to the Plaintiff's Complaint within the Required Time Period, then the
Court can enter a JUDGMENT in Plaintiff's Favor on Plaintiff's
Claims.
How It Works……
Step One
ENTRY OF DEFAULT
"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default."
EFFECT: The defaulting party is
deemed to have admitted all wellpleaded allegations in the Complaint.
Entry of Default - Requirements
To secure an Entry of Default, the Plaintiff must show by affidavit that:
.Defendant was properly served with process.
.The Court has subject matter jurisdiction over the case.
• The Court has personal jurisdiction over the Defendant.
. The Defendant has failed to appear or otherwise defend.
How It Works…
Step Two
ENTRY OF JUDGMENT
Upon receiving Entry of Default, Plaintiff may seek default
judgment. The CLERK may enter judgment if Plaintiff can show
that (1) Defendant failed to appear, (2) the Defendant is a
competent adult, and (3) damages are for a "sum certain"
Otherwise, the COURT will determine whether default judgment is appropriate and what the damages
should be.
The decision to grant default
judgment is DISCRETIONARY.
The Court must determine whether
the Complaint states a "claim upon which relief can be granted.”
Setting Aside Defaults
Default Judgments are "disfavored" and may be
set aside for appropriate cause.
ENTRY OF DEFAULT may be set aside for "good cause".
Did Defendant seek to set aside PROMPTLY?
Was Defendant's failure to respond to the lawsuit WILLFUL?
Does Defendant have a "MERITORIOUS DEFENSE”?
DEFAULT JUDGMENT may be set aside for any of the reasons listed in FRCP 60(b).
FRCP 60(b) - Relief From Judgment
Reasons for Vacating a Judgment
Mistake, inadvertence, surprise, excusable neglect
Newly discovered evidence
Fraud, misrepresentation, or other misconduct by adverse party
Void judgment
Changed circumstances
In the interests of justice
Week 11
Responding to the Complaint
There are two possible options available to the Defendant under the FRCP for responding to the
Plaintiff's Complaint
1) The defendant could file an Answer (a "pleading" - the
usual approach), OR….
2) The defendant could file a
"'pre-answer motion"' under
FRCP 12, in lieu of an Answer (if available).
NOTE: The Defendant
must respond to the
Plaintiff's complaint in a
timely way or a default
judgment will likely be
entered against him
Timing of the Response…..
FRCP 12(a) provides that a Defendant must file an Answer to the Complaint...
.Within 21 days after being served; OR
.Within 60 days after the request for walver of service, if
Defendant agreed to waive formal service under FRCP 4(d) (90
days if Defendant is outside the United States); OR
.Within 14 days of the disposition of a Pre-Answer Motion, if the
Complaint was not dismissed.
Form of the Answer
Pursuant to FRCP 8(b), the Answer must:
.State defenses to each claim in short, plain terms.
.Admit or deny the allegations in the Complaint. If you don't know
if the allegation is true or not, state that you are "without
knowledge or information sufficient to form a belief as to the
truth of the allegation" - this will have the effect of a denial.
.Denials must fairly meet the substance of the allegations.
.If you intend to deny only part of an allegation, specify so much
of it as is true and deny the remainder.
The Three Sections of the Answer
• Every answer must admit or deny the allegations of plaintiff's complaint.
• The answer must contain any affirmative defenses defendant intends to raise.
The answer can contain claims against other parties, such as a counterclaim against plaintif
or a cross claim against a co-party.
Responding to Pleadings
Allegations in a pleading that REQUIRES A RESPONSE
(like Plaintiff's Complaint) will be deemed admitted if not
denied.
Allegations in a pleading that DOES NOT REQUIRE A RESPONSE (like Defendant's Answer) shall be
considered denied - no response to those allegations is required.
A complaint can have up to three parts.
The first part of any complaint is deny or admit the specific allegation of
P’s complaint.
2nd affirmative defense
3rd is counter claims against the p or cross claims against co partys
Affirmative Defenses
Affirmative Defenses are Subject to the Same Pleading Requirements as Complaints
.Must set forth a "short and plain statement" of the basis
for the defense.
.Must include either direct or inferential allegations as to
all elements of the defense asserted.
What Is An Affirmative Defense?
• An affirmative defense is an excuse or justification for the
Defendant's action that would avoid the Plaintiff's claim, even
if the claim were true.
. It does not contradict Plaintiff's allegations; rather, it asserts
new matter that, if proven, would avoid Plaintiff's claim.
.Affirmative defenses MUST BE PLEADED in a party's
responsive pleading, or else they are waived.
What Is An Affirmative Defense?
FRCP 8(c) provides a non-exhaustive list of "Affirmative Defenses"
Examples: Statute of Limitations, Contributory Negligence, Assumption of Risk.
The seven defenses listed in FRCP 12(b) are affirmative defenses, and therefore must be pleaded in the
Answer if they are not asserted in a Pre-Answer Motion.
*Must plead your affirmative defenses in your first response to the p’s complaint
Motions to dismiss for lack of smj , improper venue , insuffiecent process all are waived if not
raised in the party’s first response . You must raise them at a pre answer motion or you waive
them
Sample Affirmative Defenses
First Affirmative Defense
Plaintiff has failed to state a claim upon which relief may be granted
(i.e. failed to state a cause of action) with respect to the above
allegations.
Second Affirmative Defense
Plaintiff's purported claims for relief are barred in whole or in part
by the doctrine of latches. Plaintiff intentionally and without just
cause, permitted an unreasonable delay in pursuing its claim against
the defendant.
Third Affirmative Defense
Plaintiff is entitled to no relief due to the amended complaint have
been filed beyond the five (5) year statute of limitations.
Voluntary and Involuntary Dismissals
FRCP 41(a) - Voluntary Dismissals
A Plaintiff Can Voluntarily Dismiss an Action WITHOUT Consent of the Court...
1) By : Presumed to be without prejudice.
2) Unilaterally IF AND ONLY IF the Defendant has not yet filed
an answer or summary judgment motion.
Unilateral Dismissal is governed by the "Two Dismissal Rule"
> First voluntary dismissal is w/o prejudice;
>Second voluntary dismissal of same claim is an "adjudication on the merits" it will preclude a third
lawsuit based on the same claim.
FRCP 41(a) - Voluntary Dismissals
A Court will usually GRANT a Plaintiff's motion for
voluntary dismissal unless the Defendant can show
prejudice (i.e., harm) as a result.
The court can place
conditions on the grant
of dismissal to prevent
prejudice to the
Defendant.
Plaintiff can't dismiss
over Defendant's
objection if Defendant
has filed a counterclaim,
unless the counterclaim
remains pending.
FRCP 41(b) - Involuntary Dismissal
If the Plaintiff Fails to Prosecute or Comply with the FRCP or a Court Order, Then the Defendant May
Move for INVOLUNTARY DISMISSAL under this Rule.
FRCP 41(b) - Involuntary Dismissal
Involuntary Dismissal by the Court, whether under FRCP 41 (b) or otherwise, is WITH PREJUDICE ...
unless...
.The Court's Order says otherwise; or
• The dismissal is due to lack of jurisdiction, improper venue, or failure to join a necessary party.
The Court may also dismiss Plaintiff's lawsuit sua sponte under
Rule 47(b)
FRCP 11 and Other Ethical Limitations
FRCP 11
Rule 11 is the Primary Sanctions Provision in the Federal Rules of Civil Procedure
The Rule provides ethical limitations on the content of
documents filed with the federal district court.
FRCP 11
Every Pleading, Written Motion, and Other Paper filed with the court shall be signed by at least ONE
ATTORNEY OF RECORD OR BY THE PARTY, if the party is not represented.
FRCP 11
By presenting such paper to the court (whether by
signing, filing, submitting, or later advocating), an
attorney or unrepresented party is CERTIFYING TO
THE BEST OF HIS KNOWLEDGE, INFORMATION
AND BELIEF FORMED AFTER REASONABLE
INQUIRY, the following:
FRCP 11
Rule 11(b): Representations to the Court
1) The paper is not presented for any improper purpose;
2) Allegations are warranted by existing law or by a non-frivolous
argument for the extension, modification or reversal of existing
law, or the establishment of new law;
3) The allegations have evidentiary support or are likely to have
evidentiary support; and
4) The denials of factual contentions are warranted on the evidence, or if specifically so identified, are
reasonably based on a belief or a lack of information.
FRCP 11
An Objective Standard
Rule 11 reaches not only willful conduct, but also conduct
that is merely negligent. The "reasonably competent
attorney" standard applies.
It doesn't matter
if you did it by
accident, or
didn't do it
deliberately. The
question is,
SHOULD YOU
HAVE KNOWN
BETTER?
Sanctions Under FRCP 11
What Kind of Sanctions Can the Court Award Under Rule 11?
Imposition of Rule 11 sanctions is LIMITED to what is SUFFICIENT TO DETER conduct that violates the
rule.
Sanctions may consist of
(1) directives of a
nonmonetary nature, (2)
penalty paid to the court,
or (3) payment to the
moving party some or all
of its expenses, if
warranted for effective
deterrence.
Seeking Sanctions Under FRCP 11
A "Safe Harbor" Provision
A party seeking sanctions under Rule 11 must SERVE its
motion for sanctions on the offending party at least 21
days before FILING the motion with the Court, in order to give the offending party time to cure the Rule 11
violation without Court intervention.
A Rule 11
motion must be filed separately
from any other motion a party
might also wish to file .
Seeking Sanctions Under FRCP 11
A Court Can Also Raise the Issue of Rule 11 Sanctions Sua Sponte (on its own).
In that circumstance, the Court must issue an Order to
Show Cause why sanctions should not be imposed, and give the offending party an opportunity to
respond.
Sanctions Under FRCP 11
court. A court could decide NOT to impose sanctions for a rule violation if it determines that sanctions are
not required for deterrence.
• Monetary sanctions MAY NOT be awarded against a represented party for violation of Rule 11(b)(2).
28 USC $1927
Any attorney or other person admitted to conduct cases in any
court ... who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such
conduct.
Court's Inherent Powers
Federal courts have an "inherent power" to punish conduct that abuses the judicial processes
and have discretion to fashion an appropriate sanction.
Week 12
Amendments to Pleadings
In both State and Federal Judicial Systems, Amendments to Pleadings are generally viewed
favorably, and procedural rules provide broad opportunities for amendment. A party may realize
after filing his pleading that he wants to add a claim, a party, or a defense, or needs to change his
pleading in some other way.
FRCP 15(a): Amendments Before Trial
FRCP 15(a) provides THREE WAYS for a Party to Amend a Pleading BEFORE TRIAL FIRST:
A party may amend its pleading ONCE as a "matter of course" within –
Don’t need permission


21 days after serving it; OR
If the pleading requires a response, then 21 days after:
-A responsive pleading is served, OR
-A Rule 12 pre-answer motion is served.
A party must respond to an amended pleading that requires a response within the original time
for filing the response or 14 days after service, whichever is longer.
FRCP 15(a): Amendments Before Trial
What Does "MATTER OF COURSE" Mean?
Amending "as a matter of course" means that you can file your amended pleading WITHOUT
getting permission from the Court or other parties!
FRCP 15(a): Amendments Before Trial
FRCP 15(a) provides THREE WAYS for a Party to Amend a Pleading BEFORE TRIAL
SECOND: Stipulation of the Parties . If a party cannot amend "as a matter of course" under Rule
15(a), then a second approach is to obtain the written consent of the opposing party. How often
do you think a party to a lawsuit will AGREE to allow an OPPOSING PARTY to file an
amended pleading? The answer to this question may surprise you!
FRCP 15(a): Amendments Before Trial What Does "MATTER OF COURSE" Mean?
Amending "as a matter of course" means that you can file your amended pleading WITHOUT
getting permission from the Court or other parties!
FRCP 15(a): Amendments Before Trial
FRCP 15(a) provides THREE WAYS for a Party to Amend a Pleading BEFORE TRIAL
THIRD: Leave of the Court/court order (Motion to amend)
.If a party cannot amend "as a matter a course" or by stipulation, a party can file a
MOTION with the Court asking permission to amend. .
Motions to amend are "freely granted", and will be denied only if the Court finds
that the motion to amend is unduly dilatory, unduly prejudicial (preparation prejudice) to
other parties, futile, or in bad faith.
FRCP 15(a): Amendments Before Trial
When is a Motion to Amend to Amend "unduly dilatory, unduly prejudicial, futile, or in bad
faith"?
Examples
FUTILITY: Plaintiff files a motion to amend her Complaint to add a claim that would destroy
subject matter jurisdiction, or to add a party over which the Court does not have personal
jurisdiction.
UNDULY DILATORY, UNDULY PREJUDICIAL: Plaintiff was fully aware of a new claim
she wanted to add to her Complaint two weeks into the lawsuit, but waited until the DAY OF
TRIAL to move to amend her Complaint to add the claim.
A defendant faces undue prejudice when the amendment would put them in a postion
where their interest is compromised or harmed in terms of their ability to prepare to defend with
respect to their claim.
BAD FAITH: Defendant moves to amend its Answer to state that it DID NOT manufacture the
defective product that is the subject of Plaintiff's Complaint, but rather that ANOTHER company
was responsible. Defendant was aware of the mix-up shortly after filling its Answer, but
deliberately waited until AFTER the statute of limitations ran on Plaintiff's Claim to seek
amendment.
FRCP 12(b) Waivable Defenses
Relationship between Rule 15(a) and Rule 12(b) "waivable" defenses - Rule 12(h)
The General Rule; If you failed to include the "waivable defenses" (lack of PJ, improper venue,
improper service, improper process) in your FIRST response to the Complaint, you have
WAIVED them. BUT..
You can CURE THE WAIVER if you are able to amend AS A MATTER OF COURSE to add
the defense!
This only works if your FIRST RESPONSE to the Complaint is an Answer. If your first response
is a pre-answer motion and you fail to assert the waivable defenses there, they are forever
waived.
Amendments During & After Trial
FRCP 15(b) provides for Amendments to Pleadings DURING and AFTER Trial
A Motion to Amend under Rule 15(b):
.May be GRANTED to conform the pleadings to evidence presented at trial, or by
consent of the parties.
. May be GRANTED over the objection of a party where:
-Presentation of merits will be served, and
-The objecting party cannot make showing of prejudice.
.May be DENIED on the same grounds as a Rule 15(a) motion: bad faith, undue delay,
unfair prejudice, or futility.
Statute of Limitations Problems...
What if I Want to Add a Claim or Defense to my Pleading that is BEYOND the Statute of
Limitations Period?
.If the Statute of Limitation ran on the claim/defense BEFORE the lawsuit was filed, then
the claim is TIME-BARRED, and an amendment to add the claim would be FUTILE.
.If the Statute of Limitations ran on the claim AFTER the lawsuit was filed BUT
BEFORE PARTY SEEKED TO AMENDENT , then FRCP 15(c) MIGHT provide a basis for
allowing the amendment, on the theory that the new claim “relates back" to the original filing
date of the Complaint.
Relation Back Doctrine
If the Stat of Lims ran on the claim/defense you want to add AFTER the lawsuit was filed, then
FRCP 15(c) (1) (B) permits "relation back" if the new claim/defense AROSE OUT OF THE
SAME CONDUCT, TRANSACTION, OR OCCURRENCE as that set forth in original pleading.
THE CRITICAL QUESTION Did the original pleading GIVE SUFFICIENT NOTICE to the
opposing party of the new claim/defense that the party seeking the amendment wants to add?
Relation Back Doctrine
What if I want to add a NEW PARTY, and the Stat of Lims applicable to the claim ran after the
lawsuit was filed?
FRCP 15(c)(1)C) allows relation back IF
. The claim against the New Party arises out of the same transaction or occurrence as that
set forth in the original pleading; AND .
.The New Party received "actual notice" of the lawsuit within the period for serving the
summons & complaint under FRCP 4(m) (P has 90 days to serve the after the court has issued
the summons to serve the defendant ); AND
.The New Party knew or should know the lawsuit would have been brought against it but
for a mistake in the identity of proper party.
Relation Back Doctrine
All this is GREAT, but what if there is a law SPECIFIC to MY CLAIM that allows GREATER
opportunities for "relation back" than what FRCP 15 would otherwise allow?
The Short Answer - You Get to Use the More Generous Law!
FRCP 15(c)(1)(A): If the law supplying the applicable statute of limitations governing the claim
permits relation back of amended pleadings that is MORE GENEROUS than this Rule, then
relation back is permitted in accordance with that law.
Simple Joinder of Claims
What Is " Joinder"?
The word "JOINDER" refers to the joining together of claims and /or parties in a lawsuit. The
Federal Rules of Civil Procedure provide rules governing the circumstances under which you can
join claims together in one lawsuit, and parties together in one lawsuit.
Two-Step Joiner Analysis
1. Are the requirements of the applicable joinder rule satisfied?
. If no, can't join .
.If yes, go on to Step 2
2. Are the applicable jurisdictional requirements satisfied?
. PJ(parties), SMJ(claim), maybe venue
. If no, can't join
FRCP 18: Joinder of Claims
A party asserting a claim, counterclaim, crossclaim, or third-party claim may join as many
claims as it has against an opposing party, even if the claims are unrelated.
Rule 18 is permissive - you don't HAVE to bring all the claims you have against the opposing
party. But the Doctrine of Res Judicata may compel you to bring related claims together. (not
gonna be tested)
FRCP 13: Counterclaims
A "Counterclaim" is a claim that a party has against an OPPOSING party in the lawsuit.
There are TWO KINDS of Counterclaims under FRCP 13 COMPULSORY Counterclaims and
PERMISSIVE Counterclaims.
FRCP 13(a): Compulsory Counterclaims
A pleading MUST state as a counterclaim any claim that at the time of its service - the pleader
has against an opposing party if the claim ARISES OUT OF THE SAME TRANSACTION OR
OCCURRENCE that is the subject matter of the opposing party's claim.
FAILURE TO ASSERT A COMPULSORY COUNTERCLAIM RESULTS IN WAIVER!!
Note that claims that are not MATURE at the time the pleader files their pleading are
EXCLUDED from the definition of Compulsory Counterclaim
FRCP 13(b): Permissive Counterclaims
A pleading MAY state as a counterclaim against an opposing party any claim that is NOT
COMPULSORY
Counterclaims that DO NOT arise out of the same transaction or occurrence as the subject matter
of the opposing party's claim are PERMISSIVE. You can choose to bring them in a different
lawsuit if you want to !
,
Counterclaims and FRCP 18
Remember that Rule 18 lets you join any other claims that you have to a counterclaim against an
opposing party - whether or not the claims are related.
FRCP 13(g): Crossclaims
Crossclaims are claims brought against parties on the same side of the litigation, turning them
into opponents.
They must arise out of same transaction or occurrence that is the subject matter of the original
action. They are always permissive.
Crossclaims and FRCP 18
As long as ONE claim meets the requirements of FRCP 13(g), Rule 18 will allow the party to
add any other claims he may have against the co-party, whether or not they are related.
Simple Joinder of Parties
What Is "Joinder"? The word "JOINDER" refers to the joining together of claims and /or
parties in a lawsuit. The Federal Rules of Civil Procedure provide rules governing the
circumstances under which you can join claims together in one lawsuit, and parties together in
one lawsuit.
Two-Step Joiner Analysis
1. Are the requirements of the applicable joinder rule satisfied?
.If no, can't join .
If yes, go on to Step 2
2. Are the applicable jurisdictional requirements satisfied? .
PJ, SMJ, maybe venue .
If no, can't join
FRCP 20: Permissive Joiner of Parties
Permits joinder of multiple plaintiffs or multiple defendants in one lawsuit where... .Claims
brought by or against the joined parties arise out of the same transaction or occurrence, or series
of transactions or occurrences; AND .A question of law or fact common to the joined parties will
arise in the action.
FRCP 20: Permissive Joinder of Parties
FRCP 21; Misjoinder of parties is not a ground for dismissing an action. Court may remedy
misjoinder by adding or dropping parties, or by severing the claim of any party. FRCP 42(b); 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.
FRCP 13(h): Adding a Party to A Counterclaim or Crossclaim
Rule 13 governs Counterclaims and Crossclaims Rule 13(h) allows a party asserting a crossclaim
or counterclaim against an EXISTING party to ADD A NEW PARTY to that crossclaim or
counterclaim. Joinder of the new party must meet the requirements of FRCP 20 which means
that the claims brought against the EXISTING party and the NEW party must "arise out of the
same transaction/occurrence and have in common a question of law or fact."
FRCP 13(h): Adding a Party to a Counterclaim
FRCP 13(h): Adding a Party to a Crossclaim
FRCP 14: Impleader
Allows a party defending a claim to join other persons not yet parties. New party's liability must
be "derivative" of impleading party's potential liability. Impleading party isn't saying, "it's him,
not me", but rather, "if me, then he owes me".
,
FRCP 14: Impleader
Once the impleaded party is in the case.… . The 3rd party defendant (i.e., the "impleaded party")
can assert claims/defenses against the 3rd party plaintiff (the original Defendant). .The 3rd party
defendant can assert claims/defenses against the Plaintiff. -Any defenses that the 3rd party
plaintiff has to the Plaintiff's claims. -Any claim arising out of the same transaction or
occurrence as the Plaintiff's claims in the action. .The Plaintiff can file claims against the 3rd
party defendant that arise out of the same transaction or occurrence. .A 3rd party defendant can
implead a party who is derivatively llable to them, making themselves a 4th party plaintiff, and
the party they implead a 4th party defendant.
Impleader and FRCP 18 As long as ONE claim meets the requirements of FRCP 14, Rule 18
will allow the party to add any other claims he may have against the impleaded party, whether or
not they are related.