CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
RELEVANT CIVIL PROCEDURE AMENDMENTS, RULES, & CODE
CONSTITUTIONAL PROVISIONS
TITLE 28 OF U.S.C
§ 1331 – Federal Question Jurisdiction
Article III. Grants Federal Judicial Power
§ 1332 – Diversity of Citizenship; Amount in Controv.
Article IV. Full Faith & Credit Clause
§ 1334 – Bankruptcy Cases and Proceedings
Article VI. Supremacy Clause; Federal over State laws.
§ 1337 – Commerce and Antitrust Regulations
§ 1338 – Patents, Copyrights, and Unfair Competition
AMENDMENTS
§ 1343 – Civil Rights Cases
V. Federal Due Process Clause
VII. Right to a Jury Trial
XIV. State Due Process Clause
§ 1345 – US as 
§ 1346 – US as 
§ 1367 – Supplemental Jurisdiction
§ 1391 – Venue Generally
§ 1404 – Federal Change of Venue
§ 1406 – Cure or Waiver of Defects
§ 1441 – Actions Removable Generally
§ 1442 – Federal Officer Sued or Prosecuted
§ 1445 – Nonremovable Actions
§ 1446 – Procedure for Removal
§ 1447 – Procedure After Removal Generally
§ 1652 – State Laws as Rules of Decision
§ 2201 – Creation of Remedy
§2202 – Further Relief; as needed
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Robert J. Lewin
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
FEDERAL RULES OF CIVIL PROCEDURE
a.
Scope of Rules (FRCP 1)
b.
Form of Action (FRPC 2)
c.
Commencement of Action (FRCP 3)
d.
Summons/Service (FRCP 4)
e.
Pleadings (FRCP 7)
f.
Rules for Pleadings (FRCP 8)
g.
Pleading Special Matters (FRCP 9)
h.
Form of Pleadings (FRCP 10)
i.
Signings/Sanctions (FRCP 11)
j.
Defenses/Motions (FRCP 12)
k.
Amended & Supplemental Pleadings (FRCP 15)
l.
Derivative Actions by Shareholders (FRCP 23.1)
m.
Judgments (FRCP 54)
3.
Commencement of Action
A civil action is commenced by filing a complaint with the court.
4.
Summons/Service
(a)
Form
1. Signed by clerk, seal of the court, identify the court and parties, directed to , name of  and
lawyer, statement of the time within which the  must appear and defend, notify  that failure to
appear will result in default.
2.
May be amended at court’s discretion.
(c)
(d)
waiver:
Service with Complaint; by Whom Made
1.
Summons and copy of complaint served together; responsibility of .
2.
Server must be 18 or  may request US Marshall to serve.
Wavier of Service; Duty to Save Costs of Service; Request to Waive
1.
Waiving service does not waive objections to venue or jurisdiction.
2.
Duty to avoid undue costs in service by waiving service. Notice & Request for
a.
b.
c.
d.
f.
outside US)
in writing to  or officer of corporation.
first-class mail or other reasonable means.
complaint and waiver served together
tell  of consequences of failure to comply with request.
give  reasonable time to return waiver:
at least 30 days from day on which request is sent (60
Court will impose costs for service where no good cause is shown and waiver is not
signed.
3.
complaint.
 who returns waiver has 60 days from date on which waiver is sent to answer
90 days for s outside US.
Service Upon Individuals Within a Judicial District of the US
Service may be effected in any district in the US:
1. pursuant to the law of the state in which the district court is located, or in which service is effected
2. or by delivering a copy of the summons and of the complaint to the individual personally or by
leaving copies at the individual’s dwelling house or usual place of abode with someone of suitable
age and discretion residing there or by delivering a copy to a person authorized by appointment or
by law to receive service.
(f)
Service Upon Individuals in a Foreign Country
Service may be effected in a place not within the US by:
1.
an internationally agree means reasonably calculated to give notice
2.
or by:
a.
the laws of the foreign country for service in that country
c(i).
personal service on the individual if permitted
(g)
Service on Infants and Incompetents
As prescribed the law of the state in which service is being effected.
(e)
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Robert J. Lewin
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
(h)
Service on Corporations and Associations
Service will be effected by:
1.
as prescribed by (e)(1) or (e)(2), or by delivering a copy of the summons and of the complaint to
an officer, a managing or general agent, or to anyone authorized by appointment to receive service
2.
in a place not within the US, by all of (f) except for personal delivery.
(i)
Service on the US
1.
Service can be affected by:
a.
delivering a copy of the summons and of the complaint to the US attorney of the
district where the action is occurring.
b. also sending a copy of the summons and of the complaint by registered or certified
mail to the US Attorney General
3.
Court must allow a reasonable time to cure failure to fully serve the US
(j)
Service Upon Foreign, State, or Local Governments
1.
Pursuant to 28 USC §1608
2. Copy of the summons and of the complaint to its CEO or by serving based on the laws of that
state.
(k)
Territorial Limits of Effective Service
1.
Service of summons or a waiver is effective to establish jurisdiction over a 
a.
who can be subjected to the jurisdiction of a court of general jurisdiction in the state in
which the district court is located or:
b. who is a party joined under Rule 14 or Rule 19 and is served within 100 miles from the
place from which the summons issues.
c.
who is subject to the federal interpleader jurisdiction under 28 USC §1335
2.
If service is consistent with the Constitution, service is effective with respect to claims arising
under federal law, to establish personal jurisdiction over any  who is not subject to general
jurisdiction.
(m)
Time Limit for Service
1.
Service not made within 120 days after filing of complaint may result in dismissal except where 
shows good cause.
(n)
Seizure of Property; Service of Summons Not Feasible
1.
Court may attach property.
2. Where personal jurisdiction cannot be obtained with reasonable efforts, court may assert
jurisdiction over ’s assets within the district.
7.
Pleadings Allowed; Form of Motions
(a)
Pleadings
Types of pleadings:
Complaint, answer, reply to a counterclaim, answer to a cross-claim, if the answer contains a
cross-claim, 3rd party complaint if a person is summoned under Rule 14, and a 3rd party answer
8.
General Rules of Pleading
(a)
Pleading sets forth claim for relief and contains:
1.
short and plain statement of the grounds upon which the court’s jurisdiction
depends.
2.
short and plain statement of the claim showing that the pleader is entitle to relief.
3.
a demand for judgment for the relief the pleader seeks.
(b)
Defenses; Form of Denials
1.
Statements of denials to each individual claim and admit or deny the averments on which the
opposition relies.
2.
General denials are permissible when the pleader intends to controvert all complaints averments
subject to Rule 11 sanctions.
(c)
Affirmative Defenses
1.
All affirmative defenses should be set forth in a pleading.
(e)
Pleading to Be Concise and Direct; Consistency
1.
Averments of pleadings must be simple, concise, and direct.
9.
Pleading Special Matters
10.
Form of Pleading
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Robert J. Lewin
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
11.
Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions
(a)
Signatures
Every paper filed must be signed by the lawyer or the  representing himself.
(b)
Representations to the Court
Papers brought to the court are done so with the expectation they are, to the best of the person’s
knowledge:
1. not being maintained for some improper purpose, such as to harass or cause increased costs
in litigation.
2. nonfrivolous
3. brought with evidentiary support for the claims, or with the belief that discovery would lend
evidentiary support for the claims
4. warranted in their denials of averments based in factual proof.
(c)
Sanction
When the court finds a violation of (b), the court may impose appropriate sanctions on the party
responsible for the violation:
1. How Initiated
a.
By Motion of Opposing Lawyer
b.
On Court’s Initiative
2. Nature of Sanction; Limitations
Sanctions limited to what is sufficient to deter repetition of such conduct
by others.
12.
Defenses and Objections – When and How Presented – By Pleading or Motion- Motion for Judgment on the Pleadings
(a)
When Presented
1.
 shall serve an answer:
a.
within 20 days after being served with the summons
and complaint
b. where service was waived, within 60 days after the date the request for waiver was
sent, or 90 days to a  outside the US.
2.
When served with a cross-claim, 20 days to answer.
When served with a counter-claim, 20 days to answer.
3.
US has 60 days to respond to a complaint, counterclaim, cross-claim, etc.
4.
Service of a motion alters periods as follows:
a.
denial of motion, pleading must be served in 10 days.
b.
motion for a more definite statement granted - 10 days.
(b)
How Presented
All motions made in responsive pleading if required, except these below, which must be made
before pleading
1.
lack of subject matter jurisdiction
2.
lack of personal jurisdiction
3.
improper venue
4.
insufficiency of process
5.
insufficiency of service of process
6.
failure to state a claim on which relief can be granted
7.
failure to join a party under Rule 19
(c)
Motion for Judgment on the Pleadings
Any party may move for judgment on the pleadings – may become Rule 56 summary judgment
motion based on presentation of material outside of pleadings.
(f)
Motion to Strike
Court can strike insufficient, redundant, or immaterial defenses or matter.
13.
Counterclaim and Cross-Claim
(a)
Compulsory Counterclaims
Pleading must state a counterclaim which arises out of transaction or occurrence
(nucleus of facts)
(b)
Permissive Counterclaims
Pleadings may state counterclaims not arising out of the transaction or occurrence. (nucleus of
facts)
(g)
Cross-Claim Against Co-party
A pleading may state a cross-claim arising out of the transaction or occurrence
(nucleus of facts).
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Robert J. Lewin
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
(h)
14.
Joinder of Additional Parties
People not privy to original action may be made parties to a counter-claim or cross-claim
according to Rule19 and Rule 20.
Third Party Practice
(a)
When  May Bring in 3rd Party
Any time after commencement of the action a defending party may serve a person not a party to
the original motion.
3rd party  may bring in another  without leave of court if process is served within 10 days of
original answer to complaint.
(b)
When  May Bring in 3rd Party
When a counterclaim is asserted against a ,  may bring in 3rd party under same circumstances
under which a  could bring in 3rd party.
15.
Amended and Supplemental Pleadings
(a)
Amendments
Pleading may be amended anytime until an answer is filed or before it is placed on the trial
calendar.
Otherwise, leave of court must be obtained.
(b)
Amendments to Conform to the Evidence
Issues not raised in pleadings may be tried by either express or implicit consent of
the parties.
When objections arise over whether evidence is within the issues made by the pleadings, the
Court may allows the pleadings to be amended.
(c)
Relation Back of Amendments
Amendment of a pleading relates back to the date of the original pleading when:
1. relation back is permitted by the law that provides the statute of limitations applicable
to the action.
2. the claim or defense asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in original pleading.
3. the amendment changes the party or the naming of the party against whom the claim is
asserted if (2) is satisfied and, within the period provided by Rule 4(m) for service, the
party is brought in by amendment
a.
is properly served.
b. knew or should have known that, but for a mistake concerning the identity
of the proper party, the action would have been brought against the party.
18.
Joinder of Claims and Remedies
(a)
Joinder of Claims
A party asserting claim to relief can join as many claims together as they have against an opposing
party.
(b)
Joinder of Remedies; Fraudulent Conveyances
When a claim is cognizable only after another has been prosecuted, the two may be joined into a single
action, but the court can grant relief in accordance with the relative substantive rights of the parties.
20.
Permissive Joinder of Parties
(a)
Permissive Joinder
s claims may be joined if they assert any right to relief jointly, severally, or in the
alternative in respect of or arising out of the same transaction (operative nucleus of facts)
and if any question of law or fact common to all these persons will arise in the action.
23.1.
Derivative Actions by Shareholders
24.
Intervention
(a)
Intervention of Right
Anyone may intervene in an action where:
1.
statutory law allows such an intervention; or
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Robert J. Lewin
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
2.
where the applicant claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that the
disposition of the action may be impede the applicant’s ability to protect the
interest, unless the interest is already protected by the parties involved.
(b)
Permissive Intervention
Anyone may intervene in an action where:
1.
statutory law allows such an intervention; or
2. the applicant’s claim or defense and the main action have a question of law or fact
in common.
(c)
Procedure
A person desiring to intervene does so through procedure stated in Rule 5.
41.
Dismissal of Action
(a)
Voluntary Dismissal: Effect Thereof
1.
By ; by Stipulation – Action may be dismissed by the  without order of court
i.
by filing a notice of dismissal at any time before service of an
answer by ; or
ii.
by filing a stipulation of dismissal signed by all parties who
appeared in the action.
2.
By Order of Court – Actions will be dismissed at ’s order where the court deems
proper.
Where a counterclaim has been pleaded by a  prior to service of ’s motion to dismiss, ’s claim
will not be dismissed unless ’s counterclaim can stand on its own.
(b)
Involuntary Dismissal: Effect Thereof
If  doesn’t follow the rules,  can move for dismissal of an action or claim against that .
A dismissal in this manner is an adjudication based on the merits except in cases of dismissal for lack of
jurisdiction, for improper venue, or for failure to join a party under Rule 19.
(c)
Dismissal of Counterclaim, Cross-Claim, or 3rd Party Claim
Rule 41 applies to dismissal of any counterclaim, cross-claim, or 3rd party claim.
54.
Judgments
(a)
Definition; Form
Judgment is a decree or an order for which an appeal lies.
(c)
Demand for Judgment
Judgment by default can not be different in kind or exceed amount asked for.
Judgment can be given where default occurs, even if not demanded in pleadings.
55.
Default
(a)
Entry
When a party fails to plead, clerk enters party’s default judgment.
(b)
Judgment
1.
By clerk where amount is easily ascertainable.
2.
By the court in all cases where amount is not easily ascertainable.
(c)
Setting Aside Default
For good cause, a court can set aside a default judgment.
(d)
s, Counterclaimants, and Cross-Claimants
55 applies to all s, counterclaimants, and cross-claimants, subject to limitations of 54(c)
(e)
Judgment Against the US
Default judgment cannot be entered against the US except where claimant establishes a claim to relief by
evidence satisfactory to the court.
56.
Summary Judgment
(a)
For Claimant
After 20 days from commencement of action, move for summary judgment with or without supporting
affidavits.
(b)
For Defending Party
Can move for summary judgment at any time with or without affidavits.
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Robert J. Lewin
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
60.
Relief From Judgment or Order
(a)
Clerical Mistakes
Can be corrected by the court at any time on its own initiative or motion of either party.
(b)
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc.
On a motion and on terms that are just, the court may relieve a party from a final judgment for the following
reasons:
1.
mistake, inadvertence, surprise, or excusable neglect;
2.
newly discovered evidence which by due diligence could not have been discovered
earlier.
3.
fraud
4.
the judgment is void
5. the judgment has been satisfied, released, or discharged, or a prior judgment on which it is
based has been overruled.
6.
any other reason justifying relief from the operation of the judgment.
This motion must be brought in a reasonable time; for # 1, 2, and 3: within one year.
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Robert J. Lewin
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
1.
2.
3.
4.
5.
6.
7.
8.
9.
SUMMONS/SERVICE OF PROCESS
What must be included?
i.
Summons (issued by court clerk), and;
ii.
Copy of the Complaint.
Who may serve?
i.
Any person not affiliated with the suit over 18 years of age; or
ii.
US Marshall (if court ordered)
How is service handled within the US?
Individuals 4(e)(1)
i.
Pursuant to the law of the state in which the district court is located
ii. Pursuant to the law of the state in which service is effected
iii.
At dwelling house with person of suitable age and discretion who is living there
iv.
Personal service
v. to an authorized agent
vi.
Cannot be mailed; insufficient notification.
Corporations 4(h)(1)
i.
Pursuant to the law of the state in which the district court is located
ii. Pursuant to the law of the state in which service is effected
Note: While state statutes tend to vary, most permit notice to be served on an official or manager of the
corporation, as long as it is reasonably calculated to apprise interested parties of the pendency of a suit.
iii.
an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of
process.
Infants & Incompetents
i.
See 4(g)
How is service handled outside the US?
See 4(f)
Where may notice be served?
i.
Wherever the state court of general jurisdiction can get personal jurisdiction – look to state long arm statutes then do minimum
contacts analysis.
ii.
Wherever authorized by US statute.
iii.
4(k)(1)(b) permits service within 100 miles of courthouse.
Note: Permits exercise of personal jurisdiction over s added under Rules 14 and 19 if they are served within 100 miles of
the courthouse, even across state lines.
iv.
For federal claims only, 4(k)(2) allows federal courts to take jurisdiction to the maximum extent allowed by the Constitution if the
state long-arm statute will not reach that far.
In federal question cases, jurisdiction exists as long as the  has minimum contacts with the US as a whole, where no state
court would have jurisdiction.
Time Constraints on Service of Process
i.
Within 120 days of filing of complaint unless  shows good cause.
Effect of a Signed Waiver of Service of Process
i.
Gives  60 days (instead of 20) to answer from the day the waiver is sent.
ii.
waiver of service waives 12(b)(4) and 12(b)(5) defenses.
iii.
Rules of Waiver of Service of Process
a.
written request for waiver.
b.
first class mail or other reliable means.
c.
copy of complaint, identifying court in which suit has been filed.
d.
informs  of consequences of not complying with the waiver.
e.
sets forth the date on which the waiver is sent.
f.
includes an extra copy of notice and request with a prepaid means of responding.
g.
allows  a reasonable time to return waiver, no less than 30 days within the US and 60 days for s outside the US.
h.
When the  files a waiver of service with the court, action proceeds as though service was affected constitutionally.
Proof of Service in Absence of Waiver? Rule 4(l)
i.
If no waiver exists, server must make an affidavit as proof of service (unless done by US Marshall)
ii.
Failure to file affidavit does not invalidate service; court may allow proof of service to be amended or added.
NOTES
i.
Actual notice is not a substitute for the rules. (See National Dec. Co. v. Triad Holding Corp.)
If a state law or federal rule is on point, it must be followed.
Rule 4 is inflexible regarding strict compliance.
a.
Rule 4 discourages rule evasion
b.
Rule 4 provides uniformity in the system of providing notice
c.
Courts are comparatively passive; notice req. are leg. domain.
Congress makes the laws; the courts interpret them.
ii.
Service through Fraud is invalid.
A  cannot induce a  to enter a jurisdiction for the sole purpose of serving them with notice.
Once that person is in a state voluntarily, however, deception may be used to get the person into the opening.
Notice must contain reasonably complete information about a person’s right.
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Robert J. Lewin
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
a.
PLEADING
The Complaint
Modern pleading rules attempt to provide notice of the nature of a claim or defense.
1.
Form of the Complaint:
10(a) requires:
i.
Name of the Court
ii.
Title of the Action (by party’s names)
iii.
Docket Number/Space for docket number if unknown..
iv.
Identity of document designation under 7(a); “complaint” or
“answer”, etc. . .
10(b) requires: (clearly state what’s in the document)
i.
Numbered paragraphs limited as far as practical
ii.
Each claim on separate transactions made on separate counts.
2.
Elements of the Complaint
8(a)(1) requires:
i.
a short and plain statement of the claim showing  is entitled to
relief.
ii.
Gillispie v. Goodyear Service Stores: Facts constituting cause of action must be
set out in the complaint to determine whether  is entitled to relief.
Dioguardi v. Durning: Courts embrace a liberal view of notice pleading whereby
no complaint will be held insufficient for failure to state a claim unless ‘the pleader makes
allegations that show on the face of the complaint some insurmountable bar to relief.”
Garcia v. Hilton Hotels Int’l, Inc.: Where such a short and plain statement is
missing, court can grant 12(e) motion for more precise statement on which relief
is to be granted.
a short and plain statement of the grounds upon which the court’s jurisdiction
depends; unless already established
For federal courts – fed. ques. (§1331) or diver. juris.
(§1332)
i.
regardless of consistency.
3.
8(e) requires:
each averment be simple, concise, and direct – no technical forms of pleading or
motions are required.
ii.
allows claims or defenses that are made in the alternative,
Pleadings
7(a) limits pleadings generally to:
i.
the complaint
ii.
an answer
iii.
reply to any counter-claim or cross-claim
4.
Pleading Special Matters
9 requires heightened pleading requirements for Fraud, Mistake, and Civil Rights
claims:
i.
than under Rule 8.
5.
stated.
Denny v. Carey: Rule 9 pleadings require “slightly more notice”
Pleading Damages
9(g) requires that when items of special damages are claimed, they be specifically
i.
Ziervogel v. Royal Packing Co.: Attempts to recover for injuries resulting from
heightened blood pressure and shoulder damage not stated in the complaint are not
permitted under 9(g).
6.
The Prayer for Relief
8(a)(3) requires a demand for judgment for the relief the pleader seeks.
54(c) allows relief for a party who wins the final judgment, even if relief is not requested.
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Robert J. Lewin
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
i.
Bail v. Cunningham Brothers, Inc: though a party was not successful in demanding
relief in his pleading, he is entitled to relief under evidence, and relief can be given.
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Robert J. Lewin
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
ii.
Responding to the Complaint
1.
2.
3.
4.
Time Permitted for Response
12(a) gives most s 20 days from service of the complaint to respond either by
motion pursuant
Motions to Dismiss
12(b)(6) motion to dismiss for failure to state a claim on which relief can be
granted.
i.
American Nurses’ Association v. Illinois: Where short, concise statement of basis on
which relief may be granted does not exist, case may be dismissed. Here,  nearly
pleaded themselves out of Court by stating conclusions of law in their response to the
12(b)(6) motion. Keep it simple!
Other Motions Attacking Pleadings
12(f) motion to strike impertinent or scandalous material.
i.
Gateway Bottling Inc. v. Dad’s Rootbeer Co.: To strike material as scandalous, it must
be obviously false and unrelated to the subject matter of the action.
Answering the Complaint
a.
Denials
8 requires a  to make one of three responses to ’s complaint:
Admit, Deny, or Plead Insufficient Information.
i.
Denials
a.
General denials are acceptable but frowned upon;
b. Specific denials will usually contain specific denials to averments. See 8(b)
c.
Insufficient Information are ok; must comport with Rule 11; taken as
denials.
ii. Zielinski v. Philadelphia Piers, Inc.: More specific denial would have informed 
that the suit was brought against the wrong company.
8(d) requires all averments that  does not respond specifically to are deemed
admitted.
i.
iii.
The Reply
1.
Wingfoot California Homes Co. v. Valley National Bank: Danger of a general
denial, all that is not specifically denied is taken to be admitted.
b.
Affirmative Defenses
8(c) lists 19 affirmative defenses that must be raised specifically.
 must raise defenses that do not glow logically from ’s complaint.
i.
Ingraham v. US: Failure of govt. to raise affirmative defenses means the defense
is waived.
7(a) permits a complaint, answer, reply to counterclaim, answer to cross-claim, and 3rd party complaint
as allowable pleadings.
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Robert J. Lewin
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
iv.
Amendments
Liberal amendment allowances is key to de-emphasis of the pleading process.
General presumption is that amendment of pleadings is ok at any time, by any party, up to and including trial.
The burden in on the objecting party to show prejudice or surprise if the leave to amend is granted.
1.
Rule 15(a)
a.
Amendment freely if:
i.
before a responsive pleading or ’s reply to ’s
counterclaim; OR
ii.
If no response is required, anytime within 20 days of
service.
b.
Amendment if leave of court granted, or written consent of parties and as justice
requires:
i.
Factors the court will consider:
a.
Reason/Purpose of Amendment
Are there claims that  should have know about through
“reasonable inquiry”?
b.
“Preparation Prejudice”
Destruction of evidence, lapse of insurance, etc. may result from
amenders lateness in attempting to change complaint.
c.
Futility
Will amendment of the complaint change the course of
proceedings?
c.
How does one amend a complaint?
i.
file a motion to amend
ii.
file a brief in support of the motion (perhaps showing no prejudice to non-amending
party)
iii.
file proposed amendment
iv.
service certificate
v.
include proposed form or order.
d.
Responding to an Amendment
i.
Party must respond to the amendment within 10 days after service of amended
complaint; OR
ii.
within time remaining to respond on original complaint,
whichever is greater.
e.
Beeck v. Aquaslide: Focus on allowance of amendment “as justice requires clause of 15(c). 
acted in good faith, court says  would be hurt more by allowing the suit than  in not allowing
the suit (balancing of interests), and  used due diligence in answer the original complaint.
2.
Rule 15(b)
a.
i.
3.
a.
4.
a.
Amendments to Conform the Evidence
Parties may amend their pleadings, at the leave of the court, to conform to issues
raised by unexpected evidence.
ii.
Trying of issues by express or implied consent:
a.
Moore v. Moore: Whether parties have impliedly contested a mater is
determined by searching for indications that the party contesting an
amendment of a pleadings had actual notice of the unpleaded matters and
adequate opportunity to litigate to avoid surprise.
Rule 15(c)
Relation Back of Amendments
i.
When an original pleading is amended, the new pleading must relate back to the
original pleadings. If they relate back, they are considered to have been part of the
initial pleading. If the statue of limitations expires between the original and amended
pleading, the party may still raise the claim.
a.
Worthington v. Wilson: To relate back to the original pleading, an
amendment must:
1.
Arise from the conduct, transaction, or occurrence of the
original complaint.
2.
Notice must be given to  in timely manner (120 days under
15(c)(3)(a) 1991 amendment.
Rule 15(d)
Supplemental Pleadings
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1.
Parties may add supplemental pleadings to their original pleadings to cover events
which occur after the original pleading.
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v.
Provisions to Ensure Truthful Allegations
1.
Rule 11(a): Signature
a.
Must be (1) signed; (2) addressed; and (3) phone number
b.
Any unsigned paper is stricken unless omission of signature is corrected
promptly.
2.
a.
Rule 11(b): Representations to the Court (truthfulness to the best of the person’s knowledge)
Applies to: (1) any written argument submitted to the court AND (2) any in court
advocating if earlier submitted in writing.
1.
not presented for any improper purpose (harass, delay,
increase costs)
2.
the claims are warranted by existing law unless there is a nonfrivolous argument
for a change or modification in existing law.
3.
allegations have evidentiary support or are likely to
after more investigation.
4.
denials are warranted by the evidence presented.
Rule 11(c): Sanctions
a.
Two methods for sanctioning:
1.
motion made by a party – other party has 21 day safe harbor – time to change or amend the
motion
i.
Hadges v. Yonkers Racing Corp.: 21 day safe harbor must be given.
2.
on the courts own initiative, but party is given chance to show why it hasn’t violated a
statute.
Sanction types:
1.
limited to what is sufficient to deter repetition of such conduct or comparable conduct by
others similarly situated.
2.
court must explain why it imposes sanctions.
i.
Hadges v. Yonkers Racing Corp.: Court must explain why it is imposing sanctions;
sanctions that are politically motivated are unacceptable.
3.
courts may also impose sanctions for “unreasonable and vexatious increases in the costs of
litigation through multiplication of the proceedings under 28 U.S.C. §1927.
4.
Rule 23.1: Derivative Actions by Shareholders
a. Brought by shareholder against corporation for failing to enforce a right of corporation.
b. Complaint must allege:
1.
 was a shareholder at the time of the incident giving rise to the complaint.
2.
the action is not a collusive one (strike suit).
c.
Surowitz v. Hilton Hotels: Interests of justice in hearing the suit outweigh the fact that the 
did not understand her complaint. Good faith filing meets the standard of 23.1.
3.
b.
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JURISDICTION OVER PARTIES OR THEIR PROPERTY
Applicable Rules

14th Amendment: Due Process Clause: “no State shall . . . deprive any person
of life, liberty, or property without due process of law . . . “ (Applies to the
States only)

5th Amendment: Due Process Clause: “nor be deprived of life, liberty, or
property, without due process of law. (Applies to Federal Courts only)
Note: PJ is waived if not raised in 1st complaint;  waived PJ by filing the complaint, thereby choosing the jurisdiction.
1.
Traditional Bases for Jurisdiction (Pennoyer v. Neff)
Traditional analysis distinguishes three types of jurisdiction:
1. in personam – Based directly on the power of the court.
Judgment directly against the individual. Court exercises it power to render a judgment for or against a
person by virtue of his presence within the state’s territory or his citizenship there.
2. in rem – Court exercises its power to determine the status of property (people’s interest in the property, as
well; similar to in personam in this way) located within its territory, and the determination of the court is
binding with respect to all possible interest holders in that property.
3. quasi-in-rem – Court renders a judgment for or against a person but recovery is limited to the value of property
that is within the jurisdiction and thus subject to the court’s authority. The dispute that gives rise to an action
quasi-in-rem may be related to the property or unrelated to it. In an action quasi-in-rem, the property may be
used to satisfy and judgment assessed in the action.
o Uses presence of property of the individual within the court’s jurisdiction to get jurisdiction over
the person, but only up to the value of the property.
Personal Jurisdiction is ok if any of the following exist:
1.
Presence in the State:
a.
b.
Property – Supreme Court says that existence of property alone is not sufficient. Shaffer v. Heitner
Personal Presence – As long as  voluntarily travels to the forum state, and is served while present
there, the state will have jurisdiction. Jurisdiction is ok when service occurs w/in forum. Burnham
v. Superior Court
2.
Consent: Jurisdiction is ok, even if no contacts exist, where consent is given by .
a.
Forum selection clauses are ok if they are fundamentally fair. Carnival Cruise v. Shute.
Also, M/S Bremen v. Zapata, weight must be given to a forum selection clause in
determining whether exercise of jurisdiction is ok.
b. Implied Consent – By engaging in an action, a person is said to have impliedly consented to
jurisdiction. “Non-resident motorist statutes”
Drivers in a state impliedly consented to jurisdiction by driving on state roads. Hess v.
Pawloski
New view is use of police power rather than implied consent.
 who appears in court to contest jurisdiction must generally do so through a “special
appearance.” If  makes any arguments, they have implicitly accepted court’s
jurisdiction.
c.
By submitting to a court’s jurisdiction for the limited purpose of challenging jurisdiction, a 
agrees to abide by that court’s determination on the issue of jurisdiction. Ignoring the court’s
determination may lead to the imposition of sanctions through Rule 37(b)(2)(a). Insurance Corp.
of Ireland v. Compagnie Des Bauxites de Guinee
3. Domicile = current dwelling place + intent to remain indefinitely (Has the  registered to vote? Does 
work in state? Has  moved family has moved to new location?)
a.
Jurisdiction is ok on an individual domiciled within the state, even if they are temporarily out of
the state. Milliken v. Meyer
“ still has to be served in a way reasonably calculated to give him actual notice of the
proceedings and an opportunity to be heard.”
Reciprocal duty – receive benefits from state law; thus an obligation is owed to appear in court.
Necessity for statutory authorization – Jurisdiction based on domicile is ok only if statutory
enactment exists.
May be retroactive, as in McGee v. Int’l Life Insurance Co.
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2.
Expansion of Personal Jurisdiction
Pennoyer’s jurisdictional basis doesn’t work well for corporations.
International Shoe was an attempt to set forth a test for jurisdiction over corporations.
a.
When a corporation’s activities satisfy “minimum contacts” with the forum state, that corporation enjoys the
benefits and protection of the state’s laws; obligation exists to answer lawsuits in the courts of the forums
state.
i.
Minimum contacts protects the  against the burdens of litigating in a distant or inconvenient
forum.
ii.
it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed
on them by their status as coequal sovereigns in a federal system.
b. Contacts with the forum are analyzed:
1.
A  may have sufficient contact with the forum to warrant asserting jurisdiction over it for all
matters – General Jurisdiction
2.
A § may have sufficient contact with the forum to warrant asserting jurisdiction over it for matters
related to its activity with the forum without having sufficient contact with the forum to warrant
general jurisdiction – Specific Jurisdiction
3.
Determination of General v. Specific depends on nature and quantity of contacts with forum state.
Claims arising out of Contact w/ State
Claim not arising out of Contact
Continuous and Systematic
Jurisdiction is OK
General Jurisdiction
Isolated and Sporadic
Specific Jurisdiction
Jurisdiction is never OK
Milliken v. Meyer says that because capias ad respondendum (writ to arrest and hold) is no longer appropriate and new
forms of service are available, due process requires only that in order to subject a  to a judgment in personam, if he be
not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the
suit does not offend “traditional notions of fair play and substantial justice.
3.
a.
Specific Jurisdiction and State Long-Arm Statutes
Development of State Long-Long Arm Statutes
The Court’s decision in International Shoe encouraged states to expand jurisdiction through long-arm statutes.
Long-arm statutes seek to provide personal jurisdiction over nonresidents who cannot be found and served within the
forum.
L.A.S. predicate jurisdiction over nonresidents upon:
1. the ’s general activity in the state
2. the commission of one of several enumerated acts within the jurisdiction; or
3. the commission of a certain act outside the jurisdiction causing consequences within it.
Gray v. American Radiator & Standard Sanitary Corp.
First question: Does the state L.A.S. provide for jurisdiction?
L.A.S. provides for jurisdiction where inter alia a  “commits a tortious act within the state.”
Some question over whether “tortious act” = “tort”; court decides that the two are synonymous:
i.
the place of a wrong is where the last event takes place which is necessary to render liability.
ii.
place of injury is the determining factor – statute of limitations runs from when injury occurred.
Court decides that long-arm statute extends to case.
Second question: Due Process analysis:
i.
Minimum Contacts
A given volume of business is not the only way in which a nonresident can have the requisite
connection with the forum state.
The commercial transactions results in substantial use and consumption in the forum state.
Where a corporation elects to sell its products with the expectation that the product will enter in the forum state (where
a corporation puts its product into the stream of commerce), that corporation receives indirectly the
benefits of the laws of that state, and it is not unjust to hold it answerable for damages caused by its product.
Nothing about intent to have product enter the forum state.
Feathers v. McLucas
The place of the tort is not necessarily the same as the place of the ’s commission of the tortious act.
Consider when analyzing construction of long-arm statute.
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b.
Due Process and Long Arm Statutes
Interpreting the long arm statute is only half the job.
The next question is whether the statute, as interpreted, is consistent with DPC of the Constitution.
McGee v. International Life Insurance Co.
A single contract to provide life insurance for a man in California by a Texas corp.
Balancing of the interest of the , , and the forum to determine exercise of jurisdiction is ok, on top of minimum
contacts analysis.
Two prong approach to the due process analysis, minimum contacts and fair play and substantial justice.
Hanson v. Denckla
In the stream of commerce approach of American Radiator, Hanson looks to see whether  purposefully availed itself of
the protections of the forum state’s laws, thereby allowing assertion of jurisdiction.
Purposeful availment means the corporation intends to receive protection of the forum state – subjects itself to
jurisdiction within the forum state.
World-Wide Volkswagen Corp. v. Woodson
L.A.S applies.
Expands on the “fair play and substantial justice” prong of the D.P. analysis:
Court considers:
1.
Burden on the  in defending in the forum statute
2.
Interest of the forum state.
3.
’s interest in litigating in the forum state.
4.
Interstate system of justice for resolution.
5.
Impact on substantive law.
Lists factors for minimum contacts:
Court consider:
1.
No sales or services in the forum state.
2.
No purposeful availment of the protections of the state’s law.
3.
No solicitation of business through salespersons or advertising reasonably calculated to
reach the state.
4.
The record does not show that  regularly sold cars to Oklahoma customers or seeked to
serve the Oklahoma market.
Simply putting a product into the stream of commerce that may reach the forum state is insufficient without
purposefully availing themselves of the protections of the forum state.
Brennan dissents, saying fairness is the only factor that needs to be considered in determining whether jurisdiction is ok.
Kulko v. Superior Court
Merely causing an effect within the forum state is insufficient to support jurisdiction.
Relies on fairness doctrine – effects on both interstate justice and burden on  to overrule California’s assertion of
jurisdiction.
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Burger King Corp. v. Rudzewicz
Foreseeability that is critical to DP analysis is whether ’s conduct and connection with the forum state would allow them to
reasonably anticipate being called into court.
Contract-Plus analysis – Look at communications before, during, and after the signing of the K to determine the degree and type
of contacts  has with the potential forum.
Court holds that K alone is insufficient to support jurisdiction.
Other factors play into the decision regarding the  has purposefully availed themselves through the K of the state’s
protections:
1.
Prior negotiations between the parties
2.
Expected future consequences
3.
Actual terms of the contract
4.
Actual course of dealings
i.
Brennan says that the 20 year K, along with negotiations outside of Michigan and expectation of
dealings with Fl. corporation, choice of law clause saying K will be interpreted under the laws of
Fl., course of dealings reinforces the expected future consequences (significant contact with
Florida).
Question of Fairness:
Bargaining power is seen as being relatively equal.
Michigan’s interest in the case does not mean that Florida should not hold the trial.
Convenience to the court system and judicial economy is not affected negatively by having the case in Florida.
Asahi Metal Industry Co. v. Superior Court
Part I, written by O’Connor – no action was taken to purposefully avail of state protections on the part of .
1.
Put the product into the State
2.
Marketing the product in the state.
i)
Advertising
ii)
Office or agents in the forum
iii) No designing of the product for the forum
iv) Providing advice to customers in the forum.
NOTE: Asahi could not have been involved in any of these processes. They were simply an intermediate
manufacturer selling to another intermediate manufacturer.
“Minimum contacts must have a basis in some act by which the  purposefully avails itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections of its laws.” from Denckla and Burger King.
3.
O’Connor says that there was no purposeful contact, despite deriving a benefit from it – no availment of state’s
laws.
i.
“Purposeful availment” is a phrase from a prior case involving totally different facts. She nearly
makes it equivalent to a constitutional doctrine.
ii.
Four members of the Court say that the company must reach out to the state through the
activities listed in 2.
Part IIA of the holding deals with the “minimum contacts” requirement. (Court splits; Rehnquist, Powell, & Scalia support
minimum contacts analysis)
1.
Simple awareness that the stream of commerce may bring the product into the forum state does not mean the
act was purposefully directed at the forum state.
Stevens says there is no reason to look to minimum contacts; only look to reasonableness standard.
1.
Just look to the facts of the case – Limit the scope of the judicial decision.
i.
Volume, Value, and Hazardous Character are the three facts pertinent.
1.
100,000 units annually over several years is purposeful availment.
ii.
Here, the facts support a finding of minimum contacts.
Part B focuses on fair play and substantial justice involved. (Gets eight justices)
1.
Burden on  of defending in a foreign legal system.
2.
California’s and the ’s interests in litigating in Cal. forum are insignificant.
3.
Great care needs to be taken when exercising jurisdiction in an international context.
Brennan, in his dissent, relies on the fair play and equal justice.
1.
In relation to the stream of commerce, he says that it must be regular and anticipated flow of products from
manufacture to distribution to retail sale.
i.
Even if you don’t control the shipment of the product into the state, if you get a benefit
from the state and are aware of that benefit, a reciprocal obligation exists and must therefore
accept an imposition of jurisdiction.
ii.
Receiving the benefit means you owe an obligation.
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c.
General Jurisdiction and State Long Arm Statutes
Perkins v. Benguet Consolidated Mining Co.
A court may exercise general jurisdiction even when the cause of action does not arise out of or relate to the foreign
corporation’s activities with the forum state as long as the Δ’s in-state activities are continuous and systematic.
In Perkins, a Philippine corporation was sued by a nonresident of Ohio in Ohio for activities conducted outside Ohio.
Where activities are sufficient to confer general jurisdiction (i.e. continuous and systematic), a claim can be heard
against the corporation on any grounds.
Helicopteros Nacionales De Colombia, S.A. v. Hall
Adopts notion of specific jurisdiction for causes arising out of isolated and sporadic contact w/ a forum
state and general jurisdiction for any cause against a corporation with continuous and systematic
contact with a forum state.
Where a corporation is sued for actions which did not arise from contacts with the forum,
continuous and systematic contacts must be found for general jurisdiction.
Mere purchases, even ones made at regular intervals in the forum, does not constitute
continuous and systematic contact w/ the forum.
i.
CEO to Houston to negotiate a K.
ii.
Accepting checks drawn on Texas bank.
iii. Purchasing of helicopters and equipment from Bell Helicopters.
iv. Sending people to get trained in Texas.
Dissent:
Brennan argues that the court should adopt “relating to” or “arising out of” language to make
the scope of specific jurisdiction wider – general jurisdiction requires more proof of contact
with the forum state.
d.
Jurisdiction Based Upon Power over Property
e.
Jurisdictional Reach of the Federal District Courts
Shaffer v. Heitner
Mere presence of property within a state is insufficient to confer jurisdiction on a court absent independent contacts
within the meaning of International Shoe, which would make acceptance constitutional. Apply minimum contacts
analysis.
Jurisdiction merely based on property within a state unrelated to the cause of action is unfair.
1. Based on fair play and concepts of justice.
Delaware had a limited appearance scheme: defend only up to the value that could be lost in quasi-in-rem suit.
1. In Delaware, once one appears for quasi-in-rem hearing, in personam jurisdiction applies.
2. If one doesn’t appear, default loss only for value of property.
In the wake of Shaffer v. Heitner, all quasi-in-rem decisions were overruled.
Territorial limitations on the exercise of personal jurisdiction by federal courts:
4(k)(1) provides that in actions other than federal question and interpleader cases, the federal court may assert
jurisdiction over a  only when the forum state would be empowered to do so, subject to three exceptions:
1. 4(k)(1)(B) permits service outside the forum state (but within 100 miles of the courthouse) if such
service is necessary to add a third party under Rule 14 or to join, under Rule 19, an indispensable party
to an action.
2.
4(k)(1)(C) permits service on a  who is subject to federal interpleader jurisdiction under 28
USC §1335.
3. 4(k)(1)(D) recognizes that Congress in some instances expressly has authorized nationwide, or even
worldwide service of process.
i.
See Stafford v. Briggs (p. 175; note 3)
4(k)(2) is in the nature of a general federal long-arm statute:
1. Federal courts can exercise jurisdiction over all s against whom federal law claims are made in cases in
which the  is not subject to the jurisdiction of any single state but the Constitution of the US permits
jurisdiction.
2. In response to the Court’s decision in Omni Capital Int’l, v. Rudolf Wolff & Co., where the Court
upheld a lower court’s finding that jurisdiction was unobtainable over foreign defendants doing business
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in the US where no particular state could legally serve the . Insisted the legislature must make a
change, which it did with 4(k)(2)
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f.
Challenging a Court’s Exercise of Jurisdiction over the Person or Property
1.
in the answer
Raising the Jurisdictional Issue Directly
i.
Two Options:
1.
Direct Attack:
i.
ii.
iv.
ii.
iii.
iv.
Motion to dismiss under 12(b)(2) in itself or
If you lose the case, you can appeal finding of personal jurisdiction after the
case has been decided within that jurisdiction, but cannot re-argue in the
court seeking to enforce the judgment.
iii.
PRO: Still have right to litigate merits.
CON: burden of travel, expense, new attorney, forum state court perhaps
less likely to rule against personal jurisdiction.
2.
Collateral Attack
i.
Do not appear, accept default judgment.
When original  tries to enforce judgment, make motion to avoid
enforcement due to lack of personal jurisdiction.
Entitled to appeal decision, if you lose appeal, case is closed – no chance to
litigate on the merits.
PRO: no travel, less expense, home court advantage on personal
jurisdiction.
CON: No opportunity to litigate on the merits.
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CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
ANALYZING A PERSONAL JURISDICTION QUESTION
1.
2.
Presence of a long-arm statute? (How much jurisdiction does the statute extend?)
1. If the long-arm statute does not provide for jurisdiction, then it cannot be extended.
i.
Consider whether the state statute is broad or narrow in scope.
2. If yes, then go to Due Process Test
Due Process Test:
1.
Minimum Contacts (substantive due process component)
a.
Establish whether contacts exist and what type (continuous & systematic v. isolated
& sporadic)
1.
If continuous and systematic, then general jurisdiction exists over any
claim against .
2. If isolated and sporadic, then specific jurisdiction exists only where claim arises out of
contact with forum state.
i.
Look to quantity and nature of contact with forum
state.
a.
Minimum contacts derives from International Shoe.
1. Did  purposefully avail themselves of the protections of
the forum state – thereby incurring an obligation to appear
when called into court?
ii.  must have taken actions that were purposefully directed toward the forum
state. Henson v. Denckla; Volkswagen; & Asahi
a.
Advertising in the state.
b. Soliciting business in the state.
c.
Offices or agents within the state.
d. Production of products put into the “stream of commerce” that
will reasonably enter the forum state.
iii. Did the corporation directly place a product into the “stream of commerce”
such that they received benefits and protections from the forum state –
incurring an obligation to appear?
a.
It is not enough to simply place the product into the stream of
commerce or that one is aware the product will enter the forum,
but that they intended the product to reach the forum state
through certain activities: (Brennan[dissent], in Asahi, says mere
placement is sufficient) Volkswagen, Asahi, & BK
i.
Advertising in the state.
ii. Soliciting business in the state.
iii. Offices or agents within the state.
iv. Production of products put into the “stream of
commerce” that will reasonably enter the forum state.
b. From Asahi, J. Stevens wants to look at value, volume, and
hazardous character to determine minimum contacts.
2. Fair Play and Substantial Justice (McGee v. International Life; Asahi
a.
Burden on .
Can  reasonably anticipate litigation in the forum state? (BK)
b.
Forum State’s interest in adjudicating the case.
Protection of state’s citizens and protect long-arm statute?
If Asahi hadn’t just been an indemnity suit and original  had still been in case,
California would have had great interest in having jurisdiction.
c.
’s interest in the case.
d.
System of Justice – Judicial economy.
Why would it be better to hear the case in one forum’s over
another?
Location of witnesses, convenience, travel.
e.
Impact on Substantive Law (Future Implications)
Kulko: Parents would never send kids to another state if jurisdiction would be
permitted under the circumstances.
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CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
PROVIDING NOTICE AND AN OPPORTUNITY TO BE HEARD
a.
lawsuit.
The Requirement of Reasonable Notice
1.
Due Process imposes requirements that the parties be given reasonable notice of pending
i.
Mullane v. Central Hanover Bank & Trust Co.
notice must be reasonably calculated, under all circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present their objections.
b. The notice must be of such nature as reasonably to convey the required
information and it must afford a reasonable time for those interested parties to make
their appearance.
c.
If, with due regard for the practicalities and peculiarities of the case these
conditions are reasonably met, the constitutional requirements are satisfied.
d. The reasonableness and constitutional validity of any chosen method may be
defended on the ground that it is in itself reasonably certain to inform those
affected.
a.
b.
The Mechanics of Giving Notice
1.
4(d) pushes for use of waiver of service of process.
2.
4(e) deals with service on individuals.
3.
4(h) deals with service on corporations.
4.
4(i) deals with service in a foreign country.
Waiver of Service
Maryland State Firemen’s Association v. Chavez: Service under 1993 rules for
service.
ii.
Delivery to an Agent Authorized by Appointment; 4(e)(2)
a.
National Equipment Rental, Ltd. v. Szukhent: Nature of the agent that accepts
service; cannot be associated with either party in the case.
a.
i.
c.
“Reasonably Calculated” requirement from Mullane means that notice by publication is presumptively invalid.
Allowed only if reasonable diligence was employed to find the person in question, and that person can’t be found.
d.
Notice must be served in a reasonable time to allow  to prepare defenses to claims.
e.
Constructive Notice – Permitted when actual notice is impractical.
Notifying s who cannot be located within the state (including temporarily absent domiciliary, non-resident
s, and others over whom in-state jurisdiction is exercised.
Usually done by certified or registered mail.
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CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
SUBJECT MATTER JURISDICTION
a.
Diversity of Citizenship (28 USC §1332)
i.
Requirement of “complete diversity” – C.J. Marshall in Strawbridge v. Curtiss:
1. No diversity jurisdiction if any  is a citizen of the same state as any , no matter how many
parties are involved.
i.
C.J. Marshall in Bank of the US v. Deveaux: Constitution believes the states may
have “hometown” bias against out of state s.
ii. Amount in Controversy requirement:
1. St. Paul Mercury Indemnity Co. v. Red Cab Co. (cited in AFA Tours v. Whitchurch):
Dismissal for want of amount in controversy is that the sum claimed by the  which
controls if the claim is apparently made in good faith and it must appear to a legal certainty that
the claim is really for less than the jurisdiction amount to justify dismissal.
i.
Court must permit “appropriate and reasonable opportunity to show good faith
in determining amount in controversy”
ii. Aggregation of Damages
a. One  sues one , aggregation of several claims is ok
b.
Two s sue one , no aggregation unless injury is indivisible.
(Joint ownership of land, for e.g.)
c. One  sues two s, no aggregation unless injury is indivisible.
d. Aggragation of punitive damages is reliant on state statute approving
such aggragation.
iii. 28 U.S.C. §1332: (Diversity)
a.
District Court’s have original jurisdiction in controversies over $75,000 and where the case
arises between:
1.
citizens of different states.
2.
citizens of a state and a foreign nation.
3. citizens of different states and in which citizens of a foreign state are additional
parties.
4. a foreign state, as a  and citiznes of a state or of different states.
Aliens admitted to the US for premanent residence are citizens of the state in which they are
domiciled.
Mas v. Perry:
i.
A person’s domicile is the place of “his true, fixed, and permanent home
and principal estalishment, to which he has the intention of reutrning.
ii.
Change of domicile may be effected only by combination of two elements:
1.
taking up residence in a different domicile with
2.
the intention of remaining there.
b.
Court may impose costs if final judgment is less than $75,000.
c.
For the purposes of §1332 and §1441 (removal)
1. a corporation is a citizen of any state in which it is incorporated and where it has
its principal place of business, except for liability insurers – in that case, liability
insurer is a citizen of insured state, as well as the state of incorporation, and
where principal place of business occurs.
Three tests for determining corporation’s “principal place of
business”:
1. “Nerve Center test” – the locus of corporate decision-making
authority and overall control.
2. “Corporate Activities test” – greater weight attached to the location
of a corporation’s production or service activiites.
3. “Total Activity test” – hybrid of 1 and 2 (above); considers all the
circumstances surrounding a corporation’s business.
i.
Realistic, flexible, nonformalistic approach to
determing a corporation’s principal place of business
through balancing of relevant factors.
2. legal rep. of a decedent’ estate is a citizen of the state of the deceased; legal rep. of
infant or incompetent is a citizen of the state of the infant or incompetent.
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b.
Federal Question Jurisdiction (28 U.S.C §1331)
1.
Federal courts have jurisdictioin over “cases or controversies” arising under the Constition or the laws of the
United States.
i.
Principal reasons for federal question jurisdiction:
1.
expertise of federal courts – Federal judges are experts on federal law; state judges are
preoccupied with local issues.
2.
uniformity in application of the laws – lower federal bench is chosen by officials of the
national government under the same procedure as the Supreme Court.
3.
independence of the federal bench – Article 3 §1: judges can serve in good behavior until
impeached and removed or resigned.
2.
Early view:
Osborne v. Bank of the US – If a federal question is even an ingredient in a case, it could “arise under
the Constitution or the laws of the US.
i.
Pre-§1331 statutory enactment.
a.
Congressional delegation of authority to the Federal bench is always narrower
than the Constititonal delegation of authority.
3.
Contraction in Scope:
Louisville & Nashville R. Co. v. Mottley (Well-Pleaded Complaint Rule)
i.
A suit arises under the Constitution or the laws of the US only when the ’s statement of
his own cause of action shows that it is based upon those laws or that Constitution:
a.
Look to the claim in the complaint that establishes the prima facie
case:
i.
Must state (1) grounds for jurisdiction, (2) basis for relief claimed,
and (3) demand for judgment.
ii.
 may not rely on a possible defense utilized by  to establish federal question jurisdiction.
Tennessee v. Union and Planter’s Bank
ii.
Subject Matter Jurisdiction (SMJ) can be questioned at any time
during trial.
a.
SMJ is a structural position; cannot be individually waived.
Skelly Oil Co. v. Phillips (Declaratory Judgment Act case)
i.
When a suit is brought for a declaratory judgment, the court must look to the underlying
claim that will be brought by , not the claim of the .
American Well Works Co. v. Layne & Bowler Co.
i.
J. Holmes says that “a claim arises under the law of the forum that creates the cause of
action.”
T.B. Harms Co. v. Eliscu(Incorporates Holmes’ Well Works analysis)
i.
Incorporates Holmes’ Well Works test for “arising under.”
ii.
A claim may be created by state law but still “arise under” the laws of the Constitution if
the complaint discloses a need for analyzing a Federal or Constitutional provision.
a.
Two exceptions to American Well Works test:
i.
Smith v. Kansas City Title & Trust Co.: Even though state law may
create the cause of action, a case may arise under federal law if you
need to establish a principle of federal law (federal law issue is a
necessary part of the well-pleaded complaint) contradicted by:
ii.
Moore v. Chesapeake & Ohio Railway: A suit brought under state
statute but has questions regarding federal statute should not be
regarded a a suit arising under the laws of the US.
iii. Shoshone Minin Co. v. Rutter: In certain rare cases, where the
federal law creates a cause of action but local or state laws govern
the issue, the case does not arise under federal law because state and
local laws and customs are controlling.
Merrel Dow Pharmaceuticals Inc. v. Thompson: (liberal/conserv. split re: state v.
federal power)
i.
Majority: Because Congress did not explicitly enact a private federal tort action, they did not
intend for one to exist (thus no SMJ).
a.
Inferred specific congressional intent to deny FQJ in absence of explicit
permission of right of action by Congress.
ii.
Minority: Even where  asserts a right or remedy that is state created, fed. juris. may still
exist (Kansas City Title) because one needs to look to the three factors underlying fed. ques.
juris. Fed. judges are better equipped to rule on fed. law and legislative intent where there is
no explicit authorization in Federal statute for jurisdiction.
iii. What’s left of Kansas City Title after Merrel Dow?
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CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
Kansas City Title is still good law if the state law claim incorporates a federal
constitutional issue where no Congressional enactment counteracts it.
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CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
SUPPLEMENTAL JURISDICTION
[REMEMBER: SJ can be questioned at anytime throughout proceedings.]
a.
The History of Supplemental Jurisdiction (Pre-§1367 Constitutional Scope)
1.
Pendent Claim Jurisdiction – one  v. one ; one federal claim, one state claim.
i.
When could a party join the two claims together and try the case in
Federal court?
ii.
United Mine Workers v. Gibbs
a.
Constitutional reach of supplemental jurisdiction is defined by
Gibbs.
b. Pendent jurisdiction exists where the relationship between the federal and state
claim is such that a conclusion can be drawn that the entire action before the
court comprises one constitutional “case.”
c.
The federal claim must have substance sufficient to confer SMJ on the court.
i.
Must derive from “common nucleus of operative facts” or “same transaction or
occurrence”.
ii.
The federal court has power to hear the state claims where the two
derive from the same common nucleus of operative facts.
d.
Power to hear state claims is discretionary.
i.
Based on:
1.
judicial economy
2.
convenience
3.
fairness to the litigants
ii.
Court may choose not to hear cases
where:
1. federal claim is dismissed before trial – state claim should
also be dismissed. (In Gibbs, even though the Federal
claim was eventually dropped, the court could still hear the
state claim because it was already in court)
2. state claim “substantially predominates” over the federal issue,
jurisdiction should not be taken.
3. aside from jurisdictional questions, a court may choose not
to utilize discretion where considerations such as the
likelihood of jury confusion in treating divergent legal
theories or relief exist.
iii.
Court may use discretion to hear
case where:
1. the state and federal issue are so intertwined that the
argument for pendent jurisdiction is extremely strong.
2. Ancillary Claim Jurisdiction – Either a  or  inject a claim lacking independent basis for jurisdiction by
way of counterclaim, cross-claim, or 3rd party complaint.
i.
Pendent Party Jurisdiction – Several s suing one  or several s suing several s
1.
Some claims have independent basis for jurisdiction; some do not.
2.
When can the claims be joined and heard in federal court?
i.
Aldinger v. Howard – Pendent party jurisdiction was attempted but failed
because attempt to add an insufficient claim against 2 with a jurisdictionally
proper claim against 1 is fundamentally different than Gibbs.
ii. Kroger v. Owen Equipment & Erection Co. - 1 (Iowa) sues 1 (Nebraska)
waiting for 1 to implead 2 (Iowa). 1 cannot sue 2 because §1332
requires complete diversity.
1. Court says it would be unfair to allow an “end run” around
§1332 requirement of complete diversity through pendent party
jurisdiction.
2.
Kroger upheld by §1367(b).
iii.
Finley v. US - 1 brings federal claim against
1; state claim against 2.
1. SC says no jurisdiction exists because Congress hasn’t explicitly
provided for jurisdiction in such a case.
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CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
a.
become §1367.
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Robert J. Lewin
Invites Congress to pass what will
CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
b.
The Supplemental Jurisdiction Statute (§1367 – Congressional Scope)
a.
§1367 codifies supplemental jurisdiction as it existed before Finley (outer const. boundary
under Gibbs)
b.
§1367 – Supplemental Jurisdiction statute:
a.
Except as provided by (b), (c), or Federal statute, in any civil action of which district courts have
original jurisdiction, the district court has supplemental jurisdiction over all claims related to
claims in the action when they form part of the same case or controversy (common nucleus of facts –
same transation or occurrence) under Article III of the Constitition.
b. In any civil action where the district court has jurisdiction based on diversity of citizenship, no
supplemental jurisdiction can be had over claims by s against people or parties under Rule 14 (3rd
Party Impleading; See Kroger), Rule 19 (Parties joined to case), Rule 20 (Permissive Joinder of
Parties), or Rule 24 (Intervention).
-orIn any civil action where the district court has jurisdiction based on diversity of citizenship, no
supplemental jurisdiction can be had over persons proposed to be joined under as s against
people or parties under Rule 19 or seeking to intervene under Rule 24 when that would be
inconsistent with §1332.
c. District courts may decline to exercise supplemental jurisdiction over a claim under (a) if:
1.
the claim raises a novel or complex issue of state law,
2. the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction.
3.
the district court has dismissed all claims over which it has original jurisdiction,
4. in exceptional circumstances there are other compelling reasons for declining
jurisdiction.
i.
Executive Software North America, Inc. v. US District Court:
a.
Unless a court properly invokes a § 1367(c) category (1, 2, 3, or 4) in exercising its
discretion to decline supplemental jurisdiction, SJ must be asserted.
b. The factual predicate must be identified (i.e. §1367(c)(1, 2, 3, or 4), and when it is,
then the court looks to economy, convenience, fairness, and comity.
c.
If a court invokes §1367(c)(4) it must explain what the “compelling
reasons” are.
d.
Provides period of tolling of statutes of limitations for any supplemental claim that is either
dismissed or voluntarily dismissed at the same time – Claims are tolled for 30 days after dismissal,
unless state law provides for a longer period.
Prevent the loss ofr claims to statutues of limitations where stae law fails to toll the running
of its limitations period while a supplemental claim is pending in federal court.
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c.
Removal (§1441 Actions Removable Generally)
Notes:
1. The first requirement for removal is SMJ under §1331 or §1332. “Original Jurisdiction”
2. Next, look to Removal Statute §1441, which imposes more restrictions than §1331 and §1332 apply to s
trying to bring a case.
3. When  files a claim in state court that could have been brought in federal court, the  can remove the case
to the distict court for the area where the state claim was brought.
4.
Only ’s can remove cases (Shamrock Oil and Gas) to federal court, even if counterclaims are
brought.
a.
Having submitted to a court’s jurisdiction through pleading, a  may not choose to
remove.
5.
Removability is determined at the tiem the notice of removal is filed, with one exception:
a.
Existence of diversity must be determined (1) at the time of removal and (2) at the time that case
was originally filed.
6.
If case is properly removed:
a.
notice of removal must be filed within 30 days of receiving complaint or amended complaint
which makes case removable.
b.
Motion to remand must be filed within 30 days of motion to remove.
i.
If not filed in 30 days, waiver of right to remand exists.
a.
b.
c.
d.
e.
Any civil action brought in a state court where a district court could have original jurisdiction can be
removed by the  or the s to the district court of the US for the place where the claim is brought.
Citizenship of s sued under fictitious names is disregarded.
Any civil action in which the district courts have original jurisdiction based on Federal Question Jurisdiction
can be removed without regard to citizenship of the parties.
-howeverAny civil action in which the district courts have original jurisdiction based on Diversity of Citizenship is
removable only where none of the defendants are citizens of the state where the action is brought.
When an independent claim having jurisdiction under Federal Question Jurisdiction is joined with a
nonremovable claim, the entire case can be removed and the district court may remand all matters
where state law predominates.
American Fire & Casualty Co. v. Finn: Where the two claims arise from the same suit, they must
be totally independent from eachother; they cannot be related at all, based on the “independent
claim” language of §1441(c).
Roe v. Little Company of Mary Hospital (Red Cross Case): The two claims (state & federal) are
intertwined closely enough to meet common nucleus of operative facts, therefore supplemental
jurisdiction may exist  court may remand based its on its discretion according to §1441(c), which
provides that remanding the case is ok as long as jurisdictional authority is based Federal Question
Jurisdiction (§1331).
SC says that removal here was proper because federal jurisdiction was based on a separate
statutory grant, not §1331, and thus 1441 confers no discretion on the court to remand the
case.
Any civil action brought against a foreign state is removable to the district court of the US for the
district where the action is pending.
Upon removal, will be tried without a jury.
When removal is based on §1441(d), time limitations of §1446(b) may be enlarged for cause.
The court the case is removed to may hear all claims, even if the state court didn’t have jurisdiction to
hear some of the claims.
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CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON – FALL 1999
VENUE
1.
General Principles
a.
Venue means the place of trial in an action within a state.
i.
Reflects equity or expediency in resolving disparate interest of parties to a lawsuit in the place of trial.
ii.
State has number of choices, any of which would be acceptable, in striking the balance between
plaintiff’s and defendant’s interests.
b.
In determining proper venue, go first to statute.
i.
Based on the theory of claim, the SM of claim, the parties involved, and combination of these.
2.
Local and Transitory Actions
a.
All statutes provide for venue in transitory actions arising within and without the state.
i.
Usually predicated on one of 13 different fact situations:
1.
where the subejct of action or part is situated, where the cause of action arose,
where some facts is present or happened, where the defendant resides, where the
defendant does business, for e.g.
ii.
Reasor-Hill v. Harrison: Says the based on equity, the case could be brought in Arkansas even though
the damage to property occurred in Missouri. An action could not have been brought if the court
hadn’t adopted the minority view.
1.
Cites Livingston v. Jefferson: (Majority View) Actions involving real property must
be brought in the state where the property is located. In most states, the action
must be brought in the actual district where the property is located.
3.
Federal Court Venue
a.
§1391 Venue Generally: (Effort to alleviate the burden of unnecessary litigation.)
(a)
Div ersity Cases
In diversity cases, a civil action can be brought only:
(1)
in a judicial district where any  resides, if all s reside in the
same State.
(2) in a judicial district where a “substantial part of the events giving rise to the claim
occurred, or a substantial part of the property that is the subject of the action exists,” or (if
1 and 2 don’t work, then:)
in a judicial district in which any  is subject to personal jurisdiction at the time the action
is commenced, if there is no district in which the action may otherwise be brought.
(b)
Federal Question or Supplemental Jurisdiction Cases
In cases founded on federal question or supplemental jurisdiction, a civil action can be brought:
(1)
in a judicial district where any  resides, if all s reside in the
(3)
same State.
(2)
in a judicial district where a “substantial part of the events giving rise to the claim
occurred, or a substantial part of the property that is the subject of the action exists,” or (if
1 and 2 don’t work, then:)
(c)
(e)
i.
Bates v. C&S Adjusters
Receipt of a collection letter constitutes a “substantial part of the events
giving rise to the claim” and thus venue is proper.
(3) in a judicial district in which any  is subject to personal jurisdiction at the time the action
is commenced, if there is no district in which the action may otherwise be brought.
Corporations
For venue, a corporation resides in any judicial district where it has minimum contacts (i.e. personal
jurisdiction over the corporation can be had). In a state with more than one judicial district and PJ may
be had, the corporation resides in any district with which it has minimum contacts and, if the
corporation has no minimum contacts with a judicial district, the corporation resides in the district
with which it has the most contacts.
(d)
Aliens
An alien can be sued in any district.
Officer of the US govt. or Agency Acting under Color of Employment (Nationwide service by
registered mail is only ok where the suit is nominally against an individual officer but is in reality against
the govternment.)
A civil action can be brought in any jduicial district in which:
(1)
a  in the action resides.
(2) a sbustantial part of the vents giving rise to the claim occurred, or a substantial part of the
property that is the subject of the action is situated, or
(3) the resides if no real property is involved.
Additional parties may be joined under the particular rules of the Fed. Rules.
(f)
Foreign State
Civil Action may be brought as under §1603(a):
(1) in any judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substanital part of the property is situated.
(2) See pg. 254.
(3) See pg. 254.
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4.
5.
(4) See pg. 254.
Change of Venue
a.
§1404(a)
For the convenience of parties and witnesses, in the interest of juditce, a district court may transfer any civil
action to any other district or division where it might have been brought.
i.
Hoffman v. Blaski
a.
Rule is that the change of venue is allowed only where the  was allowed to bring in
the first case.
b.
Consider that transfer of venue questions inevitably involve PJ and venue in the
transferee forum.
c.
§1404(a) is to be strictly construed.
d.
A transfer must not only be in the interests and convenience of justice, but also must
be in a place where the  could have originally filed the complaint.
Also includes permissive counterclaims.
b.
Choice of law for transfer of venue:
i.
Under §1404(a) transfer from a place where PJ and venue were ok, you take the law with you.
Don’t want s trying to change venue simply to get better law. (Vandussen)
ii.
Under 1406(a): Goldlawr Inc. v. Heiman, in a case where venue and PJ are wrong, transfer is ok to a
forum with proper venue, but the law of the forum does not come with the case.
Forum Non Conveniens
a.
Operates to ameliorate the burden imposed upon a  when jurisdictional rules would permit to force him to
litigate in an especailly invonvenient forum.
b.
Court must still determine jurisdiction first.
c.
A more convenient forum must exist for a Court to grant a FNC motion.
d.
Gulf Oil Corp v. Gilbert
i.
A court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of
a general venue state.
ii.
Delineated the factors to be considered in deciding a motion based on forum non conveniens:
1.
Private interests of the litigants:
2.
Eacse of access to sources of proof
3.
Availablility of compulsory process for attendance.
4.
Cost of obtaining attendange of willing witnesses.
iii.
Also of consideration is enforcibility of a judgment if one is obtained.
iv.
Plaintiff’s choice of forum should rarely be disturbed.
e.
Piper Aircraft Co. v. Reyno
i.
A  may not defeat a motion to dismiss for forum non conveniens merely by showing that the
substantive law of the alternative forum is less advantageous than that of the present forum.
ii.
Here, all the evidence, witnesses, and interests were in Scotland.
The most convenient forum was there.
iii.
Under some circumstances, the fact that the chosen state’s laws are less attractive to the  could be
used to defeat a motion to dismm for FNC. If the state chose by the  has the only adequate remedy
for the wrong alleged, then the motion may be denied.
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