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Civil Procedure
JURISDICTION: 1) territorial 2) subject matter 3) venue 4) w/stand forum non conveniens
in deciding juris: -proximity -diff. procedural rules -diff. substantive law -jury/judge bias
Personal Jurisdiction: power of a court to adjudicate in personam
jurisdiction over your person in rem
jurisdiction
over every owner of the property quasi in rem Type I: dispute
re: property
Type II: dispute not about property
Restatement 2nd of Judgements §4 (comment a): states/nations defined by geographical boundaries; place of a transaction important
Fed. Judiciary Act 1789: if state court has jurisdiction, so does a federal court
Jurisdiction Considerations:
1) Claim to be asserted:
a) a claim is a legally enforceable right that confers a duty on someone
b) res judicada (civil) and double jeopardy (criminal) means you must try all your claims in one suit Why prohibit res judicada?
1) finality is important to justice system
2) contradictory verdicts undermine people's faith in judicial system--kills basis of C/L
3) efficiency of the court system; much proof would be the same; sep. trials are redundant
2) Who to include as a party in the suit:
a) collateral estoppel: discourages multiple suits for one crime on different parties
3) Where to Sue: Jurisdiction
a) territorial: geographic limits by state
b) venue: geographic limits by county (state level) or district (fed. level)
c) subject matter: what types of cases a court can hear (Fed: fed q, diversity)
Appeals:
1. Direct Attack: to raise an issue that you think was a mistake in ct. where suit filed
2. Collateral Attack: only used for 2 claims: (1) no jurisdiction (2) no notice
Case
Pennoyer v Neff:
Personal Jurisdiction rule
presence (in personam and in rem--prop. in state)
example: in personam presence: I can be sued in CA no matter what
I'm doing there, what I'm being sued for, as long as I'm served while I'm physically present.
example: in rem presence: If I have a boat off the Pugeot Sound, anyone can
go to WA and file suit in rem against me and use my boat to get jurisdiction--even if the suit has nothing to do with WA or the boat.
Good law or bad law? If it is unreasonable for me to defend myself in WA in personam, it makes it no more reasonable for me to defend myself there in rem (in unrelated
matters to my boat or WA contacts--which I have none but boat)
International Shoe
in personam: min. contacts; in rem: presence (Pennoyer)
example: in personam minimum contacts:
Good law/bad law?
Standards for minimum contacts established: comport w/ traditional notions of fair play and substantial justice (Miliken v Meyer)
Perkins v Benguet
continuous & systematic contacts: general jurisdiction
Corporations so many contacts with the state that it would always be reasonable for them to be sued there (HQ)
People so many contacts in the state where you live, it is always reasonable to sue you there
McGee v Internat'l Life
Hanson
minimum contacts: specific jurisdiction
minimum contacts
Shaffer v Heitner
1) minimum contacts for in personam and in rem
2) related to lawsuit (specific jurisdiction only)
example: a person can sue you in their state if you assaulted them in their state because the fact that you were there
and assaulted someone is a minimum contact and the contact (assault) is related to the lawsuit
Importance: did away with in personam and in rem distinction
World-Wide VW
(specific jurisdiction)
1) minimum contacts
2) related
3) purposeful
Burger King v Rudz
When is a contract a contact?
(specific jurisdiction)
-when buyer sues seller in buyer's home state: always
-when seller sues buyer in seller's home, K must be:
1)
negotiated
2) long term relationship
3) large K ($ at stake)
4) helps if buyer had to travel to sellers' home
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Civil Procedure
Asahi
1) minimum contacts:
2) related
3) purposeful (awarenss+ or awarness of eventual sales there?)
4) Reasonableness test: only for foreign D and out of state P
1) burden on D
2) forum state's interests
3) P's interests
4) judicial system's interests
5) all state's social policy interests
Helicopteros
(general jurisdiction)
Holt v Harvey
(gen. & specific juris)
1) continuous & systematic contacts:
2) at the time the suit is filed
*Texas has a long, long-arm statute
*general and specific can be viewed in aggregate to find minimum
contacts when there is some contact btwn case & forum
TERRITORIAL JURISDICTION (purpose: liberty interests in not being haled into a distant or inconvenient forum)
I. Presence (in persoman only: personal service)
II. Minimum Contacts (specific juris)
1. contacts
a) a K is always a contact for seller; for buyer it is
if:
i) LT
ii)
negotiated
iii) large K ($ at stake)
iv) P requ'd to travel to forum
2. suit arises out of contact
3. purposeful (by actions of seller, not consumer; must end up for sale in forum)
4. reasonable (only is foreign D and out of state P)
a) burden on D
b) forum state's interests
c) P's interests
d) judicial system's interests (i.e. if 2 diff. cts. could decide diff. things; economical to decide at once)
e) all states' "social policy" interests
III. Continuous & Systematic Contacts (general juris)
A. people:
1. where domiciled (where you intend to indefinately remain)
2. where you work (suggested)
B. corps:
1. where incorp.
2. principal place of business
3. where you have other "continuous and systematic" activities @ time suit is filed
CONSENT TO JURISDICTION: forum-sel clauses, waiver...
Carnival Cruise
forum selection clauses
decided by S.Ct. (Art 3 §2: admiralty) so doesn't apply to states
each state can make it's own law re: forum sel. clauses (see Texas' below)
When are forum-sel. clauses not enforceable?
-extreme inconvenience (local dispute in remote alien forum)
-bad faith (clause is trying to avoid all lit. altogether)
-fraud (did they hide the clause?)
-no notice of clause (although not much notice in Carnival)
When are forum-sel clauses enforceable in Texas?
-consumer has notice of clause prior to purchase
-consumer had a choice to accept/not accept clause ("choice" not yet interpreted...)
-place picked is "reasonable" (rznble not yet interpreted--prob. somewhere that would have had juris anyway)
-in action less than $50k, not enforceable unless set out by typeface
CHALLENGING JURISDICTION Defects in terr. juris. are waivable - you can directly/collaterally attack juris. voluntarily or impliedly consent to
juris.
Rule 12 (Federal)
1) say in responsive pleading OR
2) in a motion before you file answer OR (if denied, 10 more days to answer 12(a)4A
3) if you find in 20 days, in amended answer
can't: collaterally attack terr. juris--> if already gen. appearance
can't: rule for summ. judgement based on no terr. juris b/c not brought up in pleadings
a) when
(1) answer
(a) within 20 days of service
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b)
c)
d)
e)
f)
h)
Civil Procedure
(b) if waiver (4d), 60 days
(2) cross-claim: 20 days
(3) on US: 60 days
(4) motion
(a) deinied: answer in 10 days
(b) motion for more definitive stmt: 10 days
How Presented
(1)
s.m. juris
(2)
personal juris
(3)
venue
(4)
process
(5)
service of process
(6)
failure to state a claim
(7)
failure to join a party under Rule 19 (persons needed for just adjudication) motion must be filed prior to pleading; can
join
Motion for judgement on the pleadings
After pleadings closed; can’t delay trial (this is not summ jdgmt - R 56)
Prelim Hearings
Motion for more definitive stmt.: must point out defects in answer; amend answer in 10 days or can be striken
Motion to strike: 20 days after pleading; for insufficient defense, redundant, immaterial, impertinent or scandalous matterg)
consolidation of defenses in a motion: may join motions
Waiver
(1) Personal juris, venue, process, service is waived if
(a) If omitted from motion (g)
(b) Neither made by motion nor in answer or amendment made per R 15(a) as a matter of course
(2) failure to state claim, R. 19 (indispensable party) can be made at any time
(3) s.m. juris can be made at any time by any party
Rule 120a (Texas rule on special appearance) only by motion filed prior to all other motions and
answers (can be in same doc as anser, but file first) Ct must rule on prior to eveything else.
Tx Rule 37 b - sanctions for not complying with discovery
NOTICE AND PROCESS
Sufficiency of Process & Notice:
Constitutionally must be rzbly certain to convey the info/give ample time to respond under the circumstances
Benchmark: what businessmen would expect RCP 4:
summons: proper form, P serves after sealed by Ct., include copy of complaint, one for each D; must serve with/in 120 of filing suit; service by a
non-party (unless mailed) over 18
Waiver: req'd or else Ct. can impose costs of process on you; gives you 60 days to answer
Service: according to laws of state where district Ct. is (or according to laws of state where D is served, if there is general terr. juris) as long as
service comports w/ due process
· personal best
· can leave at dwelling where they reside (if rzbly calculated)
· mail (for waiver)
TEXAS: authorizes by mail, personal, publication, other, but in many cases it will not be constitutionally adequate, so it is best to personally
serve (esp. on corps.) R. __
LONG ARM STATUTES
Texas has a long-long-arm statute (Civil practices and Remedies code is confusing, but the Ct. has interpreted it as going as far as the Constitution
allows in Helicopteros)
1. Is the territorial jurisdiction Constitutional?
2. Is it authorized (that far) by the state?
RCP 4k: Federal Long Arm Statute:
- same as state where Dist. Ct. located
- bulge juris: party joined by Rule 14 (3rd party Ds) or 19 (Joinder of necessary parties)
courthouse (Const’l b/c w/in US - forum where conflict arose)
- when authorized by statute (there are some nationwide service of process statutes)
- 4k2: service allowed on one who is not subj. to the juris of any state (state's w/ short-long arms)
can be served w/in 100 mi of
SUBJECT MATTER JURISDICTION **not waivable**
Purpose: to protect the cts and serve institutional interests, therefore, not waivable - any party can move for dismissal based on lack of s.m. juris at
any time [direct attack only] (Rule 12 b1; 12h3)
Constitution: Art. III, §2 "all cases arising under" + specifics, incl. btwn citizens of diff. states
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Civil Procedure
Statutes: Art III, §2 gives Const. authority, but enabling statutes are still required
Types of cases 1. action at law
2. probate
3. title of real prop.
4. amt. in controversy (add 1 Ps claim; not 2 P's claims)
Fed Q
§1331
Diversity
§1332 Citizens of diff states citz. of
state & citz of foreign state
foreign state (P) v. citizens of state
admiralty
§1333 US a
party
§§1335, 1336
ambassadors, consuls...
§1351
S.Ct. Original Jurisdiction:
§1251
a) State v state (exclusive)
b1) foreign heads of state
b2) US & State
b3) State (P) v citizen
Appeal to S.Ct.
§1257
if validity of fed. laws in q.
if validity of state law in q. on grounds of violating fed. law some
statutes give Fed ct exclusive jurisdiction (like bankruptcy, §1334)
Citizenship: people
where domiciled (or last place domiciled; only changes w/ intent to remain)
corps.
where incorporated; HQ
Insurers
where insured is citizen (unless insured is joined as D)
rep. of estate where decedent was citizen
FEDERAL QUESTION S.M. JURISDICTION §1331
“When Federal Law creates the cause of action.” --Holmes
(appl: b/c the law D violated is not a federal law...)
“well-pleaded complaint rule”: P must assert, not D and not speculated to be defense or only real issue
if Declaratory action: from pov of “hypothetical complaint” filed by hypo. P (Skelly Oil)
DIVERSITY JURISDICTION §1332
a) Complete diversity of citizenship (complete: every P from every D per
· state citizenship = domicile; at time suit filed
· to change domicile:
-take up residence
-intend to indefinitely remain
· UC citizens domiciled abroad, not state citizens
· Corporations: (1) incorporated (2) principal place of bsns (primary production, HQ, both)
· Unicorporated Assoc.: all states where members live
· Trust: where trustee is citizen (not beneficiaries)
· Interpleader does not require complete diversity (3 parties; 1 party requires 1st 2 to decide whom he is liable to before they sue him;
requires part. diverstiy)
b) Amt. in controversy over $75,000
· must be reached by each P individually
· can claim amt. in good faith (if P filed in Fed. Ct; awarded < $75k, Ct. can impose costs on P) ·
if D can prove to a "legal certainty" that P cannot recover damamges over $75k St. Paul Mercury.
· Valuation:
· -punitive damages: included, judge discretion
· -injunctions: hard to value; usually look at value of injunction from either P or D
· -aggregation of claims:
·
2 Ps--ea. must meet (unless same __________)
·
1 P, 2 claims--can add
· -class actions
*Probate, domestic relations: not handled by fed. ct. even if diversity juris (Akenbrandt)
Supplemental Jurisdiction, Joinder
§1367: Supplemental Juris.
a) if fed. q juris => supplemental juris over claims (including joinder)
--w/ same CNOF
--and is Constitutional
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b) if diversity juris only, no supplemental jurisdiction (ie supp juris cannot defeat complete diversity) c) ct. can decline to
hear added claim if
1. novel/complex issue of state law
2. new claim predominates
3. ct. has dismissed al original juris. claims
4. exceptional circumstances
d) if supp. claim dismissed, SOL tolled for 30 days to allow time to refile in state ct.
R. 13 Counter- & Cross-claims
a) compulsory counterclaims
must be stated in answer or lost
arise out
of same s.m.
cannot require 3rd parties that ct
has no juris over b) permissive counterclaims
claim not related to answer (only thing you can join that is unrelated is counterclaim)
must state in pleadings
f) can amend to include a counter-claim if justice requires
g) cross-claims
same s.m. (of original claim or a counter-claim)
h) can join parties necessary to adjudicate cross-claims (R. 19, 20)
R. 14 Third-Parties (Impleader)
a) D = 3rd party P; can bring in 3rd party D
b) P = 3rd party P; can bring in 3rd party D (P would do this to defend original D's counter-claim)
R. 18: party may join claims and sequential remedies
R. 19 Joinder of Persons Needed for Just Adjudication
not defeat s.m. juris; must be subject to ct's personal juris
must be necessary for complete relief
must
R. 20 Permissive Joinder
a) all potential P's or all potential D's may join together if same claim will be asserted by / against them (arising out of same transaction)
b) separate trials may be ordered to keep from embarrassment, delay, expense...
R. 22 Interpleader (see interpleader section)
can join if P may be subject to double liability
R. 23 Class Actions
REMOVAL
28 U.S.C. §1441
a) may be removed by D from state ct to federal ct IF fed. would otherwise have juris.
b) unless it would be removed to a Fed. Ct. where D is a citizen of forum
c) supplemental juris. claims can be removed
Note: if removal improper, P challenging files a motion to remand
§1446: Removal Process
a) 1) Notice of removal: file in fed. ct include ground, copy of papers, R. 11 signature 2) Notice to
attys.
3) file copy with state ct so they know it has been removed
b) must remove within 30 days after receipt of paper showing grounds for removal
c) if you do something to take use state ct's resources after rt. to remove = waiver of removal; almost
anything beyond filing an answer in state ct. is awaiver
d) all D's must agree to removal; 30 days starts when 1st D served* decide diversity when removal occurs!
VENUE (Fed. Q & Diversity) §1391
1. DISTRICT where all D’s reside (if D a corporation, it is deemed to “reside” wherever it is subject to personal jurisdiction)
2. DISTRICT where substantial part of events occurred (note: “substantial” construed liberally)
3. IF 1 and 2 don’t work: Wherever subj to personal jurisdiction (almost never happens: must have foreign person and state w/ short-long-arm
statute)
§1404 Transfer for convenience
may transfer to any
district where could have been brought
-convenience of parties / witnesses
-interest of justice
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Civil Procedure
you cannot “transfer” from state to state: must get FNC motion w/ condition
§1406 Transfer due to improper venue
ct. can dismiss or transfer
FORUM NON CONVENIENS: c/L, no statute
Dismissal, not a transfer!!!
· Relative ease of sources or proof
· witnesses and costs
· Possibility of viewing premises
·
·
Local interests in having matter adjudicated at home
Unfairness to forum citizens: burden
· Having case tried in a forum that is familiar with the law
· Avoiding unnecessary conflicts of law · Application
of foreign law?
· Court congestion
Often granted with conditions like:
· submitting to juris
· tolling SOL
· complying with discovery
· complying with foreign judgments
Choice of Law Principles: The Erie Problem
“Do not say that Federal Courts use State Substantive law and Federal Procedural Law!”
Don’t talk about choice-of-law unless there really is a conflict of laws.
Hanna’s twin-aims of Erie:
1. prevent forum shopping
2. equitable administration of the laws (ie, same outcome, uniformity)
Federal Courts: §1652: Rules of Decision Act “the laws of the several states” unless Federal laws apply & conflict
State Courts: Art. VI §2 (Supremacy Clause)
“Use state law unless conflicting Federal law”
Federal law: Constitution, Treaties, Statutes, Fed. R. Civ. P. (unless unconstitutional, i.e. substantive)
State cause of action in Federal Ct: (apply individually to each claim)
· Use state law unless conflicting federal law
· Use FRCP (must be w/in the Rules Enabling Act, i.e., not substantive:
Justice Harlan says it’s substantive if it “would substantially affect those primary decision respecting human conduct”)
· Use federal “decisional practices” (c/L) IF it passes the outcome-determinative test (if it does not affect where someone would initially
file the claim.)
Erie Guess
Reverse Erie Guess Federal Ct. must
answer a q.
State ct. must decide on of state law not yet decided
by
a federal law/issue not yet the State’s supreme court.
decided by the U.S. S.Ct. [does not have to follow what
[does
not have to follow what state cts. have said]
the Circuit
Ct. in it’s district has said]
If Federal Q is filed in State ct use:
· Federal statute (coa)
· Federal c/L (viewed as an interpretation of the statute)
· Always use state procedural law in state ct (unless written into statute, like removal)
PLEADINGS
Purpose: to inform D of lawsuit
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Civil Procedure
Specificity required: minimal but must be enough to allow D to admit or deny (respond)
Must be pleaded specifically: fraud, mistake, special damages (only occur b/c of a special circumstance; general damages necessarily result
from the misconduct alleged; fuzzy line? Plead specifically)
1.
2.
Q of fact: did D do what is alleged
Q of law: does it matter
Normally, we don’t plead the law; when would you?
· In very imp. cases to get the judge on your side
· to get good negotiating power (scare tactic)
· if Fed. and state law give the same coa and you don’t want your case removed
Prima Facie Case: who has the burden of pleading?
· 99% of the time, you can look at history, but the underlying questions are “what is the purpose of the element and whom was this
element designed to protect?”
Normal Case: burden of pleading:
P
affirmative defenses: burdens on
D
burden of production: P
burden of persuasion:
P
Title VII case: burden of pleading:
P
burden of production  Presumption created
D (if met => P get persuasion back)
burden of persuasion
ANSWER: D’s options
1) File a 12b motion (or include w/ answer) or answer:
· deny
· admit
· “don’t know” (deemed denial)
· ignore (deemed admission)
· admit & counterclaim (affirm. Defense)
· general denial: very limited per R. 11 (in Tx general denial is very common)
2) File a 12e motion for more definitive statement:
Amendment to cure defects granted liberally (far more than 12b6);
okay as long as still arises out of same CNOF
Rule
11b) certify your pleading
11c) sanctions
* doesn’t mean your allegations are necessarily warranted by law that stands today,
but that you have a good, well-founded case for changing the law.
12 b 6:
· if a claim is ambiguous, it is never appropriate to dismiss per 12b6 b/c ct. doesn’t yet know what the claim is, much less if it is valid and
if relief can be granted When do you file a 12b6?
· Incomplete: you can’t tell if all elements are present, but you think they’re probably not
· You can tell from the fact of the pleading that they don’t have all the elements for their coa
REPLY: 7a - only reply to a counterclaim (or if ct. directs)
If P anticipates an affirmative defense, P can rebutt in his claim so case won’t be dismissed
PRESUMPTIONS: fact taken as true unless/until evidence is offered to the contrary; presumptions shift the burden of proof temporarily.
Title VII “b/c of race” presumption: P
D
Burden of pleading
production
presumption
persuasion;
(to rebutt presumption)
if met persuasion
R. 8e2: inconsistency allowed (but is only effective in the pleading stage)
AMENDING PLEADINGS
R. 15a) · once as a matter of course
Within 20 days and before answer!
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· Leave of the court freely granted “when justice so requires”
Justice
1) legitimate reason (new info.)
2) atty has been diligent in trying to obtain the info.
15b) doesn’t have to conform to evidence (means if not plead and evidence produced, can be added to the jury charge!)
15c) Relation Back:
· when premitted by law that gives the SOL or
· same CNOF
· if changes party or names party:
· same CNOF
· timely notice: within the time allowed for service (R. 4m: 120 days from filing)
· adequate notice: must know “a lawsuit has been filed & but for a mistake, it’d be me”
th
(normal interp. of “mistake” unless 7 Cir. Ill, WI, IN)
R. 16b) Scheduling order: deadline for doing things
If the amending pleadings deadline has passed:
1. get ct’s permission to amend schedule
2. then get ct’s permission to amend your pleading
12h: judgment on the pleadings: allows D to challenge the substance of the pleadings at any time up until evidence has been produced; once evidence
shows there is a claim, it doesn’t matter if the pleadings are sufficient.
SUMMARY JUDGMENT
R. 56
a)
When? P can file for SJ 20 days after commencement of action
b)
D can file for SJ at any time
c)
motion made 10+ days before SJ hearing no genuine issue as to any material fact
1) on all or part (Ct. will determine what gen. issues of fact remain)
2) all written evidence; must be R. 11 certified
3) if you can’t get defense/affidavits together, adverse party can use 56f
4) absence of genuine issues of fact
5) showing one party is entitled to judgment as a matter of law
6) viewed in a light most favorable to nonmoving party
Adickes standard: disprove every element of adverse party’s case (used in Tx); if the party moving doesn’t meet his burden, the other party (even if
it’s the party w/ the burden of persuasion) doesn’t have to show anything.
Celotex standard: aligns burden same as at trial; if moving party does not have the burden of persuasion => can specifically point out in the adverse
party’s record why it is clear they cannot meet their burden; then adverse party can try to rebutt; if they cannot, SJ is granted
Type II (P proves P), III (D)
Types I (D v P) II (P-> D)
If moving party =
burden of persuasion (rare)
does not have burden of persuasion
Must show evidence that
must show that other party has no
if
true, establishes there is
evidence can est. at lease one essential
no genuine issue of fact
element of their case; for every element of your case
must specifically pt. to absence
12b6
evidence presented
production
sufficiency of evidence
no valid claim
affidavits, written docs
SJ
Trial
evidence pleadings only
plead, produce, persuade legal sufficiency of
pleadings
valid claim, can’t prove
live, oral testimony
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pleadings &
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no jury
no credibility determinations
RES JUDICATA
Claim preclusion
Merger & bar
1.
2.
3.
4.
5.
can be jury
can determine credibility
COLLATERAL ESTOPPEL
Issue preclusion
st
judgment in 1 case
final
valid
same claims
same parties
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