I.
Civil Procedure Fall 2012
Rules
3-commencign an action (filing a complaint with the court)
4-summons
(a)(1)contents-MUST contain
(A) name the court and the parties
(B) be directed to the D
(C) state the name and address of the P’s atty or if
unrepresented the P
(D) state the time when which the D must appear and
defend
(E) notify the D that a failure to appear and defend will
result in a default judgment against the D for the relief
demanded in the complaint
(F) be signed by the clerk
(G) bear the court’s seal
(k)(1)-serving a summons or filing a waiver f service
establishes personal Jur. Over D
(k)(1)(A)- who is subject to the jurisdiction of a court of
general Jur. In the state where the district court is located
(Federal Personal Jur. =same as the PJ of the state where the
District Court located )
(k)(1)(B)- 100 mile bulge rule –who is a party joined under
rule 14 or 19 and is served within a judicial district of the US
not more than 100 miles from where the summons was issued
(k)(1)(C)- federal statutory provision
(k)(2)- Alien Provision
7- Pleadings Allowed
8-General Rules of Pleading
8(a)- Complaint must contain short and plain statement of
grounds for Jur.
8(b)(6)- if fail to deny deemed admitted
8(c) affirmative defenses (additional claism that will wholly or
partially defeat the defendants complaint)
8(d)(2) Alternative Statements of a claim or Defense
9- Pleading Special Matters
(b) mistake or fraud- msut pelad particular circumstances.
Malice, intent knowledge and other conditions may be alleged generally
11-Signing Pleadings, Motions, and other Papers; Requirements to the Court;
Sanctions
(a)-requried signature (by atty or the party if unrepresented)
(b) representations to the court
(c) sanctions- MAY rule –if violated 11(b)
12-Defenses and Objections
(a) ANSWER
(b)
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1.
2.
3.
4.
5.
6.
7.
(c)
(e)
lack of subject matter Jur. (never waived)
Lack of Per. Jur.
Improper venue
insufficient process
Insufficient service of process
Failure to state a claim upon which relief can be granted
Failure to join a party under Rule 19
Motion for judgment on the pleadings
Motion for a mre definite statement
(f)
(g)
(h)
Motion to strike
8. (3)- must make motions in a timely matter and at the
same time (or will be waived)
9. (1)- 12(b)(2)-(5) are waived
13-Counterclaim and Crossclaim
13(a)-Compulsory Counterclaims –arising out of same
occurrence or transaction msut be asserted
13(b)-Permissive Counterclaims –not out of same transaction
or occurrence may be raised but do not HAVE to be
13(g) –Cross Claims –same transaction or occurrence
(permissive)
14-Third-Party Practice
15-Amended and Supplemental Pleadings
(a) Amendments Before Trial
(b) Other Amendments
(c) Relation Back
16(b)(1)&(2) Scheduling Meeting with Judge and Scheduling Order
(e)- Final Pre-trial Order
17-P and D; capacity;Public Officers
18-Joinder of Claims
19-Required Joinder of Parties
19(a)(1)(A)- person is necessary party if in the person’s
absence complete relief cannot be accorded among the existing
parties
19(a)(1)(B)(i)-necessary party if the person claims an interest
relating to the subject of the action and disposition of the
action in the person’s absence may impair or impede that
person’s ability to protect that interest
19(a)(1)(B)(ii)- necessary party if the person claims and
interest relating to the subject of the action and disposition of
the action in the person’s absence would leave the existing
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parties subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations by reason of the
claimed interest
19(b)- if the party cannot be joined but is an indispensible
party court may not allow the action to go on in the party’s
absence by determining:
10. the extent to which a judgment rendered in a person’s
absence might be prejudicial to the person or to those
that are already parties;
11. the extent to which, by protective provisions in the
judgment the prejudice can be lessened or avoided
12. whether a judgment rendered in the person’s absence
will be adequate; and
13. whether the P will have an adequate remedy if the
action is dismissed for non-joinder
20-permissive joinder of parties
20(a)(1)-P’s may join together if assert claims arising out of
the same transaction or occurrence involving common
questions of law or fact
20(a)(2)-D’s may be joined if arising out of the same
transaction or occurrence and involves common questions of
law or fact
21-misjoinder and nonjoidner of parties
22-Interpleader
24- Intervention
24(a)(2)-nonparty has a right to intervene in an action when:
14. it claims an interest in the subject of the action
15. the nonparty is so situated that disposition of the action
would impair its ability to protect that interest, and
16. the nonparty’s interest is not adequately represented by
existing parties in the action
24(b)-permissive intervention
17. may be permitted if timely when the absentee’s claim or
defense shares a question of law or fact with the main
action
26-37-DISCOVERY
26- Duty to disclose; General Provisions Governing Discovery
(a)(1) Initial Disclosures
(a)(2) Expert Testimony
(B)Written Reports – witnesses who will testify
(C) Fact witness no written report
(a)(3)- Pretrial Disclosures
(b)(4) Experts
(A) can depose experts who may testify
(B) &(C)- Trial Prep Protection of Expert Witnesses
(D) TRIAL PREP ONLY  usually not deposed
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(b)(5)(B)- Party MUST raise privilege
(c)(1)- Protective Orders
(f)- Parties Conference ; Planning For Discovery
(g)- Sanctions Atty msut sign and
(3) sanctions do not comply with certification
33- Interrogatories
34- Request for Poduction of Docs
35- Physical or Mental Exam
36-Request for Admission
37- Failrue to disclose, supplement Earlier Repsonse or Admit; sanctions
(c)(2)- failure to admit = admitted
42-Consolidation;Separate Trials
45- Non-parties request docs through Subpoena
55- Default –happens if do not respond within 21 days
57-Declaratory Judgment
59-New Trial; Altering or Amending a Judgment
65(a)Preliminary Injunctions
(b) Temporary Restraining Order
84- Forms suffice under these rules
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II.
Relevant Sections of the 28 US Code
1291-Final Decisions of District Courts
1292-Interlocutroy Decisions
(a)(1)- unjunctions
(a)(2)- receiverships
1331-federal question jurisdiction
1332-diversity jurisdiction
1335 (and 1397 & 2361)-Statutory interpleader
1338-Patents * Copyright
(a) federal district courts courts have original jurisdiction
(b) Fed. District Courts original Jur over unfair competition
when joined with substantial related claim of
copyrights/patents (etc.)
1359-Collusive Joinder
1367-supplemental jur.
1391-Venue
1391(b)-civil action may be brought in
(1)-Judicial District in which any D resides, if all are
residents of the State in which the district is located
(2)-Judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or
a substantial part of the property that is the subject of
the action is situated; or
(3) if there is no district in which an action may
otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to the
court’s personal jurisdiction with respect to such action
1391(c)-residency
(1) natural person (including legal aliens) are
considered residents of the district in which they are
domiciled
(2) corporation (or any entity like)
a. D-any district where it is subject to personal Jur.
b. P- ONLY where it maintains principle place of
business
(3) D non-resident in the US may be sued in any judicial
district and the joinder of such D shall be disregarded in
determining where the action may be brought with
respect to other D’s
1404-change of venue
1404(a)- for the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action
to any other district or division where it might have been
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brought or to any district or division to which as parties have
consented
1406-Cure or waiver of defects
(a) authority to transfer or dismiss a case that is improper for
venue
(b) but it is waived if party does not make a motion to object to
venue
1441-removal jur.
1446-Procedure for removal
1447- Challenging Removal
1631-Transfer to Cure want of Jurisdiction
1652-State Laws of Rules and Decisions
2072- Rules of Procedure and evidence; method of prescribing
2201- Declaratory Judgment
2202-Further relief against Adverse Party
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III.
Personal Jurisdiction
a. Federal or state court? (State go to part b Fed. See below)
i. Possible waiver1. Rule 12(b)(2) –must raise any objection to PJ in initial
response or challenge is waived
2. Has the motion been waived (PJ is appropriate if yes)
ii. Rule 4(k) service of summons or waiver of service=personal
jur. When-(either follow the general rule that fed. Per. Jur. Is
consistent with state PJ or use one of these alternatives)
1. 100 mile Bulge (yes to both below PER. Jur. Under
rule 4(k)(1)(B))
a. party joined under rule 14 or 19?
b. Served within a district within 100 miles
2. Federal statutory provision (if yes to below Per. Jur.
Under 4(k)(1)(C))
a. Federal statute involved that has its own service
provisions?
3. Alien provision (if yes to below has Per. Jur. If alien has
minimum contacts 4(k)(2) must go to part C and
evaluate that too)
a. Claim arising under fed law against a person not
subject to personal Jur. In any state?
b. GO to part c.
4. Rule 4(k)(1)(A) (if no to 1,2,3 above move to part b
below)
b. Long Arm Statute
i. 1 type of long arm statute
1. Rhode Island Model-courts can exercise jurisdiction to
the constitutional limit (so move on to part C)
2. Enumerated model- (has factual circumstances where
court has per.jur.--> if this see part ii below)
ii. statutory analysis
1. If falls within the enumerated factual categories (Yes
and move on to part C)
a. Some Courts read pretty literally-Gibbons v.
Brown case court found that bringing a lawsuit
in the state did not qualify as substantial or non
isolated activity within the state
2. If does not fall within any of the categories (NO and
your analysis for per. Jur. ENDS)
c. Constitutional Analysis –Personal Jur. Must satisfy the Due Process
5th and 14th amendment
i. Traditional Basis for PJ
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1. In state Service-Tag Jurisdiction
a. Was the D served within the state? (if yes
constitutionally have Per. Jur.) Burnham v.
Superior Court-father visiting children in CA and
served with process GOOD Per. Jur. (DONE
HERE)
b. BUT not if the JUr. Was obtained by fraud Wyman v. NewHouse-(father told child was very
ill came to the state to visit only to find a
service of process (child not ill))
2. Voluntary appearance/Waiver
a. If the D appears and does not challenge Per. Jur.
(12(b)(2) motion)- PJ is constitutional
i. If removed maybe has waived? No
according to Piper v. Reno
ii. Exceptions to Jurisdictional Analysis- if no traditional basis
does exception apply? (if yes PJ is constitutional if not go on
to International shoe (iii))
1. Consent-Forum Selection Clause
a. Did the D consent to Jur. In the state? And is the
clause fundamentally fair/reasonable?
i. Carnival cruise lines inc v. Shutegenerally forum selection clauses
enforceable ( Carnival had forum
selection caluse on tix litigation would
be in FL)
2. State citizens
a. Individuals: Is the person a citizen of the forum
state?
i. YES—Per. Jur.
1. Milliken v. Meyer- domicle in a
state gives way to personal Jur.
b. Corporations
i. Place of incorporation or principle place
of business
3. Non-resident Plaintiffs
a. Is the party challenging the original P in the
action?
i. YES already consented to PJ (Adam v.
Sanger-where The P sued D in CA D
counter claimed  P abandoned action
and D received default judgment D
brought suit to enforce judgment and P
tried to object to per. Jur. In CA but had
already waived this)
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iii. International Shoe Test-if neither traditional method or
exception—this analysis)
1. In rem actions
a. Is this an in rem action?
i. YES meets international shoe
requirement if claim related to the
property
1. Shaffer v. Heitner –property
ownership alone is not enough for
Per. Jur. (still have to go to
international shoe standards-but
having property usually will meet
the specific jur. standard of
minimum contacts)
a. But can still attach property
i. To keep party from
leaving
ii. To satisfy judgments
iii. Claim must relate to
property
b. Attachment jurisdiction
may still be available if no
other forum is open to P?
2. Four position matrix (General or Specific PJ?)
a. Continuous and systematic and related (PJ)
b. Continuous and systematic but unrelated
i. Gen PJ
1. Is the corporate headquarters
within the forum state?
2. Is the corporation incorporated
there?
3. Is the corporation “at home” in
forum state –Goodyear Dunlop
Tires Operation S.A. v. Brown (not
a home b/c-not registered to do
business in NC, , no palce of
business, or bank accounts, , no
manufacturing, advertising, , no
solicitation of business, no
shipping tires to NC, BUT small
percentage of tires were
distributed in NC (through other
distributors for tractors, trailers,
etc)
4. Is the case more like Perkins or
Helicopteros?
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a. Perkins- (continuous and
systematic contacts) law
suit in OH, D was Phillipine
mining corp, During WWII
conducted bussienss out of
OH
i. Presidents office
there
ii. Company files in
office
iii. Supervised from
office limited
wartime activities of
company
b. Helicopteros- ( Not
continuous or systematic
contacts) survivors (US
citizens) of helicopter crash
in peru, brought action in
TX, against Columbian Corp,
i. No place of business
in TX
ii. Not lcensed to do
bussiens in TX
iii. Contact CEO went
to TX for K
negotiations there
iv. Accepted checks (NY
bank account)
drawnd from TX
bank
v. Purchased
equipment from TX
comp
vi. Sent personnel to TX
for training
c. Single and isolated but unrelated (NO PJ)
d. Single and isolate and related (Specific PJ –See
below)
iv. Specific Jur. Analysis-two pronged intl shoe analysis
1. Minimum contacts LOOK AT ALL THE
CONTACTS(but have this before reasonableness if
not minimum contacts done no PJ)
a. Purposeful availment? (Hansa v. Deckla requires
this)
i. Notice of possible PJ
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b.
c.
d.
e.
1. World Wide Volkswagen corp. v.
Woodson – can the D reasonably
anticipate it will be subject to PJ
(court did not find PJ here)
ii. cannot exist on unilateral actions of
parties (Hanson v Deckla-court found no
PJ)
Intentional torts-Calder effects- if the D has
intentionally targeted its tortious conduct at a
forum resident and caused the brunt of harm to
that resident (Calder v. Jones) –considered
purposeful availment
Contractual contact with foum state? (if yes go
to the reasonabless factors)
i. Contracts plus analysis
1. Place of negotiation
2. Place of execution
3. Place of performance of K
ii. (Burger King v. Rudzewiczfranchisor/franchisee-purposeful
availment –court did find Per jurisdiction
there)
iii. (McGee v. intl Ins Co-K must have
substantial connection with forum state –
insurance K –purposeful availment-in this
case CA did have PJ)
Stream-of commerce
i. Has a product of D caused harm to P after
traveling through stream of commerce?
1. Simply putting product in is not
enough need to intentionally
market to the D (foreseeability of
entering into stream is not
enough)
2. J. Mcintyre v. Nicastro- Court has
not specified what a P must do to
purposefully avail to forum state
through stream of commerce (but
we know merely putting into
stream of commerce is not
enough)
Quasi in rem
i. Claim based on property within the state?
1. Property ownership is an isolated
contact (Shaffer v. Heitner)
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a. Claim must be either
related to the property
ownership OR
b. D Must have other
minimum contacts
f. Internet (if yes go through reasonableness
factors)
i. Purposeful availment through the
internet? (Pavlovich v. Superior Ct.)
1. Express Aiming of internet activity
a. Was the internet activity
specifically aimed at the
forum state?
i. YES than move on
ii. NO go through
traditional minimal
cotnacts analysis
ii. Zippo Approach (zippo mfg. co. v. Zippo
Dot com, inc)
1. Passive-No PJ (knowledge alone
not enough-Pavlovich)
2. Active-personal Jur.
3. Interaction-maybe Per. Jur.
2. Reasonableness-if there is minimum contacts would
the exercise of PJ be unreasonable? (Asahi metal v.
Superior Court also worldwide discusses)  FAIR
PLAY AND SUBSTANTIAL JUSTICE (must have
contacts to go to this analysis)
a. Balancing of first 3 is usually determinative
i. burden on the D
1. would the inconvience to the D be
consitutionall burdensome
(impact the D’s ability to mount a
defense?)
a. YES= would be more
unreasonable
b. No=more reasonable
ii. state interest
1. does the state have a strong
interest in resolving the dispute?
a. The states interests is
greateer where its laws or
policies are at stake or
where state citizens or
corporations are involved
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i. YES=more
reasonable
ii. NO=maybe less
reasonable
iii. P interest
1. Does the Plaintiff have a strong
interest in obtaining relief in the
forum state
a. Ex. P from the forum state
or is the forum state a place
where the P is able to
obtain relief it seeks
b. YES=more reasonable
c. NO=less reasonable maybe
iv. Systematic efficiency
1. Would PJ promote the interstate
judicial system’s interest in
efficient resolution of
controversies?
a. More efficiently tried here
because of witnesses or
evidence here?
b. YES; more reasonable
v. Furtherance of social policies
1. Would PJ promote the shared
interest of the states in furthering
fundamental substantive social
polices?
a. Substantive policy interests
of forum state or some
other state at stake?
b. YES; more reasonable
v. No Personal Jurisdiction
1. Full Faith and credit (Article iv section 1) says that
another state does not have to enforce judgment
a. Usually states have to recognize the judgments
made of other states ONLY if the court rendering
judgment had jurisdiction
2. Collateral attack- a defendant can attack in a second
lawsuit a judgment made in the first
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vi. Notice (service of Process)-required by the Due Process Clause
1. Was the notice adequate? (Mullane v. Central Hanover
Bank & Trust Co. (held that notice must be by means
calculated to inform the desired parties –if they are
outside the state and names and addresses knownnotice by publication is insufficient)
a. Adequate Info(Rule 4(a)(1)-does the notice
convey adequate info to notify how and when
should respond?
i. Yes move down
ii. No Inadequate
b. Timeliness-does it allow reasonable time to
appear?
i. Yes-move down
ii. NO-inadequate
c. Method –does the method actually inform the
party and give actual notice? Was it the most
reasonable means to give notice?
i. NO-if there is a better means that is
available and reasonably practical, then it
should be employed. INCLUDES follow-up
attempts to provide notice after
discovering that notice was failed (Jones
v. Flowers)
ii. YES- where a superior method exists but
is too expensive, time consuming, or
burdensome, then it need not be
employed over more practical methods
under Mullane. THEN the notice was
adequate
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vii. VENUE- see section 1391 above for Statute
1. Waiver-has the party challenging already waived venue
(12(b)(3)?
a. Forum Selection Clause-if here is one tyoically
will prevent a challenge to venue
b. Failure to object-has the party tyring to object
already made a response to the complaint
without challenging venue so that the challenge
is waived under 12(h)?
2. Special Venue Statute?
a. YES look at venue under that statute NOT
1391
i. Alien D1. Is one of the D’s and alien or a
foreign entity?
a. YES 1391 (d) applies
ANY district in the US is ok
(Dee-K Enterprises Inc. v.
Hevafil Sdn Bhd-holding the
general venue statue
providing that aliens can be
sued in any district
overrides special venue
laws that place venue more
specifically)
ii. US as a D
1. YES Governed by 1404
iii. Federal Interpleader action?
1. Governed by 1397
iv. Copyright &/or Patent action?
1. Governed by 1400
v. Shareholder Derivative Suit
1. Governed by 1401
3. General Venue Statute (no waiver and no special
venue state apply 1391)
a. First Test-do all the D’s reside in the same state?
i. Identify the citizenship of each D
1. Individuals-residence
=citizenship(domicile) in MOST
courts
2. Corporations-resdients in districts
where they are subject to PJ (not
just state of incorporation or have
headquarters)
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a. Multi-district statesresdients of only those
districts where they would
be subject to PJ (if the
district were treated like a
state for PJ)
ii. if all of the D’s reside in the same state
venue is proper in a district where any of
the D’s reside
iii. move on to next test (to be sure)
b. Second Test- is there a district where a
substantial part of the events or omissions giving
rise to the claim took place or where property
that is subject of the action is located?
i. YES=venue proper in any of these
districts
ii. No= and could not be determined by first
test go to the fall back provision
c. Fall Back Provision – if cannot determine venue
by first two tests 1391 fallback provision
i. Diversity Cases- if this is a DIVERISTY
ONLY case any district in which ANY D
is subject to PJ is proper
ii. Non-Diversity Cases- no diversity only
case is there a district where any D
could be found (i.e. subject to PJ)  if
yes those districts are proper
4. Transfer of venue(only fed. Court)- allowed under
section 1404 & 1406 (can the case be transferred?)
a. Jurisdiction & Venue in Transferee Court?
i. Is the transferee district proper (does it
have PJ and is it a proper venue for the
action?
1. No No transfer
2. Yes—May be transferred
b. Convenience & Justice
i. Would the transfer be “for convenience of
parties and witnesses” (1404) and “in the
interest of justice” (1404 &1406)
1. Yes may be transferred
5. Forum non conveniens(state and fed. Court)- common
law doctrine-: 2 prerequisites been met?
a. Adequate Alternate Forum –is there a forum
outsie the federal system that is available?
i. NO dismissal for forum non convienen
NOT proper (Gulf Oil Corp. v Gilbert)
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ii. Unfavorable Law
1. Piper Aircraft v. Reyno-Merely
showing that substantive law in
alternative forum would be less
favorable ALONE is not enough to
defeat a motion to dimsis for
forum non Conveniens
iii. Bar to Relief
1. If the foors to the P are virtually
closed to the P for some reason,
preventing the P from seeking
relief alternative venue may not
qualify as an adequate alternative
b. Public/Private interest factors Factors to
consider (Gulf Oil Corp. v Gilbert Test)
i. Private interest factors-affect the
convenience of litigants
1. Relative ease of access to sources
of proof
2. Availability of compulsory process
for attendance of unwilling and the
cost of obtaining attendance of
willing witnesses
3. Possibility of view of premises, if
view would be appropriate to the
action
4. Other practical problems that
make trial easy, expeditious, and
inexpensive
ii. Public Interest Factors-affecting
convenience of the forum
1. Administrative difficulties flowing
from court congestion
2. Local interest in having localized
controversies decided at home
3. The interest in having the trial of a
diversity case in a forum that is at
home with a law that must govern
the action
4. The avoidance of unnecessary
problems in conflict of laws, or in
the application of foreign law
5. Unfairness in burdening citizens in
an unrelated forum with jury duty
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c. Piper Aircraft v. Reyno- substantive law being
less favorable in a forum is not enough to defeat
a motion to dismiss for forum non conveniens
18
a
IV.
Subject Matter Jurisdiction-Article III (Section 1-establishes
Surpeme Court and Section 2- limits Federal Courts Jur. to
enumerated subject matter)
a. Original Federal Court Jur. Over the claim?
i. Diversity-does the action satisfy 28 USC 1332?
1. Citizenship of Parties?
a. Individuals- citizenship for individuals is
determined based on domicile; to establish
domicile a person must be physically present in a
place and have the intention to remain there for
an indefinite period of time
i. Cases: Hawkins v. Master farms, inc. –
finding that domicile is determined by
physical presence and an intent to remain
in a place
ii. Redner v. Sanders- must have complete
diversity based on Citizenship
(citizenship does not mean residency)
b. Corporations-citizenship is based on its place or
places of incorporation and the place where its
principal place of business (1332(c)(1) –
i. Hertz Corp. v. Friend-held Nerve Center
Tets(Headquarters)- Corporation’s
principle place of business is where the
headquarter is usually (but always where
the nerve center is)
c. Partnerships and Unincorporated Associations –
viewed as collections of individuals (Not viewed
as an entity) so they are citizens of every state
and county in which its partners or members are
citizens
i. Grupo Dataflux v. Atlas Global GroupGruopo-MX corp. and Atlas had a few
partners that were MX citizens (NO
DIVERSITY)
ii. Caterpillar inc. v. Lewis- no diversity at
time of removal—but then the nondiverse party settled court allowed the
judgment to stand because diversity at
the time of judgment (opposed to Grupo
who would never have complete
diversity)
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2.
3.
4.
5.
d. Legal Representatives – deemed to be citizens
only of the state of the party whom they
represent (28 USC 1332(c)(2)
i. Hawkins v. Master Farms iNc.
Diverse Parties? (Yes to any of the below=diversity)
a. Adverse parties citizens of different states
i. D.C., Puerto Rico and US territories are
treated as states
b. does the case involved citizen versus an alien?
c. Does the case involve citizens of different states
with aliens as individual on either side or both
sides (BUT REMEMBER permanent aliens are
treated as a state citizen for diversity purposes)
d. Does the case involve a foreign state as a P
versus a state citizen?
e. NOT PERMISSIBLE: alien v. alien; state citizen
+alien v. alien; alien v. alien +state citizen; state
citizen v. permanent resident alien from same
state; ALIENS ARE NOT ALLOWED TO BE ON
BOTH SIDES OF THE V WITHOUT STATE
CITIZENS ON BOTH SIDES
Complete Diversity
a. Are all the parties on one side diverse from all
parties on the other side (aliens cane be from the
same country)
i. Strawbridge v. Curtiss- Interpreted the
predecessor to 1332 to mean COMPLETE
diversity
Collusive Joinder
a. Evidence that a party has been joined collusively
simply for creating diversity?
i. YES 1359 says can ignore diversity of
citizenship
Amount in Controversy- does it EXCEED (not equal)
$75,000 (28 USC 1332(a)) ?
a. Punitive damages included-Punitive damages
cannot be the majority of the amount
i. Salmi v. D.T. Management Inc (P had
minor compensatory damages but relied
greatly on punitive damages court
denied jur.)
b. Costs and prejudgment interest excluded
c. Aggregation of Amount in controversy
i. Single P with multiple claims against
single D
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ii. 2 P’s with only one meeting the amount in
Controversy can as long as claims come
out of same case or controversy (Exxon
Mobil Corp. v. Allapattah) multiple P;s and
Multiple D’s- common undivided interest
(single title or right)  value of total
interest used to calculate
iii. NO if 2 P’s against 1 D that have
separate and distinct claims
ii. Federal Question-does it satisfy 28 USC 1331 or other statue?
1. Essential Federal Element –does it contain element so
that it arises under federal law?
a. Creation Test –does it contain essential federal
law or brought pursuant to fed. Law
i. YES arises under
ii. No Does not
b. Substantial Federal Interest Test –is the claim
based on state law but P’s right to relief depends
upon application or interpretation of federal
law?
i. IF YES is the federal interest
substantial?
1. YES the claim contains and
essential federal element provided
te exercise of federal Jur. Would
not disturb “any congressional
balance of federal and state Judicia
lresponsibilites” (Grable & Sons
Metal Prods. Inc. v. Darue Eng’g
&Mfg
2. NO lacks essential federal
interest NO federal Question Jur.
2. Well-Pleaded Complaint Rule-does the essential
federal element appear on the face of the P’s wellpleaded complaint? (Luisville & Nashville R.R. Co. v.
Motley)
a. Federal Responses Ignored
i. Are there anticipated or actual federal
defenses that must be ignored for
purposes of assessing the propriety of
federal Question Jur?
21
b. Supplemental Jur.- if the claim does not qualify for diversity or
federal Jur. does it qualify under 1367?
i. 1367(a)-does it apply?
1. Freestanding Claim-claim over which court has original
Jur?
2. Common Nucleus of Operative Fact –is the
supplemental claim based on the common nucleus of
operative fact as the freestanding claim?
a. United Mining Workers v. Gibbs – must arise out
of common nucleus or operative facts
(comprising one constitutional case)
b. In re Ameriquest Mortgage Co. Mortgage Lending
Practices Litigation – Supp. Jur. is proper where
there is a sufficient nexus between state and
federal claims and statutory discretion factors do
not out weigh
ii. 1367(b)-if 1367 (a) satisfied does 1367 (b) bar?
1. Diversity Claim ?
a. If no 1367 (b) not relevant
b. If yes move down to next question
2. Supplemental Claim by Plaintiff –claim by P or P who
was joined under rule 19 or 24 here?
a. No if the claim not made by a P or P joined
under 19 or 24 1367 (b) does not prevent
Supp. Jur,
i. Claims by P’s joined under rule 23 or 20
may enjoy sup. Jur. as long as diversity
not destroyed (exxon Mobil Corp. v.
Allappattah Servs. Inc)
b. Claim by a joined P
i. If the claim is by a P joined under rule 19
or 24 the claim will not qualify for Supp.
Jur. if such Jur. would be inconsistent with
diversity requirements
c. Claim by a P
i. If this is the case go down to next
question
3. Against certain Joined parties – is the claim against
persons made parties under rule 14, 19, 20, 24?
a. No Suppl. Jur. Not prevented
b. YES Supp. Jur. Not permissible
iii. Discretionary basis for denial of Jur. 1367(c)?
22
1. Novel state issue?
a. Szendrey-Ramos v. First Bancorp- holds that if a
novel state issue can deny sup. Jur
2. State claim predominates over federal claim?
a. Bulk of claim relates to state issues (federal
claim is minor?
b. Szendrey-Ramos v. First Bancorp- holds that if
state claim predominates federal can deny sup.
Jur
3. Federal Claims Dismissed?
4. Other Circumstances why sup. Should not be allowed?
a. Ex. Jury confusion
23
c. Removal- P filed in state court can D remove to Federal? (28 USC
1441)
i. Original- would the fed. Courts have had original jur. over P’s
claims? (1441(a))
1. YES diversity go to next question (if federal question
go to part v. below)
2. No Not removable
ii. Diversity Basis- is the D who is seeking removal citizen of state
where case has been brought? (1441 (b))
1. YES Cannot remove
2. No go to next question
iii. Time Limit- 30 days passed since the initial service (1446(b))?
1. Yes D have waived the right to remove
2. No next question
iv. Defendant Unanimity- have all D’s agreed to removal?
1. No Case may be remanded
2. Yes removal proper
v. Federal Question Basis
1. If the question could have been brought as a matter of
federal question-> removal is allowed if Unanimity
among D’s and 30 day time limit has not expired
2. Does not matter where the D is from in this type of case
vi. Motion to Remand
1. If a case is removed praty can make a motion to
remand is field within 30 days of the notice of removal.
2. BUT Remand motions for lack of Subject Matter Jur. can
be made at any time
3. Caterpillar Inc. v. Lewis- district courts error in failing
to remand a case improperly removed does not prevent
adjudication if the jurisdictional requirements are
satisfied at the time of judgment
24
V.
Joinder
a. Permissibility of Claims-is it permitted under the rules
i. Defending Party’s Claim Against Opposing Party-is the
claim in question being asserted against a party who has
asserted a claim against the claimant?
1. No – if not, proceed to (ii below)
2. Yes- if so the claim may be asserted as a counterclaim.
Next ask whether the claim arises out of the same
transaction or occurrence as the claim asserted against
the counterclaimant. This question is answered with
reference to the logical relationship test:
a. (Plant v. Blazer Financial Services)
i. Are the issues of fact and law the same
ii. would res judicata bar a subsequent suit
on the counterclaim?
iii. Is the same evidence involved?
iv. Is the counterclaim logically related to the
main claim? (Logical Relation Test)
b. Yes- Compulsoryif he claim arises out of the
same transaction and occurrence, the
counterclaim is COMPULSORY and must be
asserted or it will be waived  does not need its
own independent Jur.
c. No-Permissive-does not arise out of the same
transaction or occurrence, may be asserted,
needs its own independent jur. basis
ii. Claim Against Non-Aggressor-who is the claim against?
1. An opposing D-18(a)-allows P to join other claims
against the D
2. Co-party- (someone on the same side of the v) does
the claim arise out of the same transaction occurrence
or property that is the subject of the original claim?
a. YES- CROSS CLAIM 13(g)- claim MAY be
asserted (not a must rule)
b. No- may not be asserted as cross claim (unless
has already asserted a cross claim in which it
could be joined under 18(a)
3. Rule 14 (impleaded Party-derivative
liability(contribution of joint tort feasors or
indemnity in K actions)-claim against an existing
third-party D who is the Claimant?
25
a. Third Party P (original D)
i. The additional claim can be joined under
rule 18(a)
b. P-same transaction and occurrence as original
claim
i. YES-claim may(NOT MSUT) be asserted
under Impleader 14(a)(3)
1. UNLESS—Complete Diversity is
destroyed then do not have
Supp. Jur. under 1367 (b) (codified
Kroger case)
ii. NO-claim not permitted under 14(a)(3)
(but if have already asserted a claim, may
be joined under Rule 18(a)
c. Co-Party –cross claim ABOVE
4. Third Party D against P(original P)same transaction
or occurrence as original claim?
a. YES-claim may(NOT MUST) be asserted under
14(a)(2)(D)
b. NO-not permitted under 14(a) (BUT IF HAVE
ALREADY asserted another claim then maybe
can joined under Rule 18(a)
5. Rule 19 (required/necessary party) or 24
(Intervening party)
a. Depends on which side they are on use the
rules above once you decide where
26
b. Permissive Party Joinder-is joinder permissible?
i. Joinder of D’s-is the P asserting against the D’s a right to relief
arising out of the same transaction or occurrence and involving
a common question of law or fact ?
1. (Mosley v. General Motors Corp.-holding that
permissive joinder is to be broadly granted under rule
20 if arising out of the same transaction or occurrence
and a common question of law or fact arises)
2. YES- P may join under Rule 20(a)
a. Timeliness of joinder- according to Larson v.
American Family Mutual Ins Co- an amendment
to complaint seeking to join a party to a lawsuit
filed one month after complainant confirms the
party’s involvement in law suit is timely under
Rules  also held the same transaction or
occurrence rule
3. NO-P may not join in a single action
ii. Joinder of P’s-20 (a) same rule as for joinder of D’s
1. P’s may join together if arising out of same
transaction/occurrence and common question of law or
fact
iii. Joinder of Nonparties (impleader-derivative liability
(either contribution of joint tortfeasor or indemnity if K
action)) –party seeking to implead must be in a defensive
position
1. IF NOT cannot implead under rule 14(a) (but check
compulsory joinder under Rule 19
2. IF SO is the party to be impleaded liable to the
impleading party for all or part of the P’s original
claim?(price v. CTB, Inc- holding that a D may assert a
clam against anyone not a party to the original action if
that Third party’s liability is some way dependent upon
the outcome of the original action)
a. YES-can implead under rule 14(a) (impleaded
party becomes third party D, must be done
within 14 days of D’s answer or HAVE TO GET
court’s permission-we do not care about SMJ or
venue for third party D-ASK about PJ and
supplemental Jur)
b. NO-cannot implead
c. Special Case: Owen Equipment & Erection co.
v. Kroger- In a diversity case the Fed. Court does
27
not have SUpp. JUr. over the P’s claims against a
third party D who is a citizen of the same state
P (iowa) sued D and D impleaded Owen who
was thought to be from NB, original settled and it
was only P against thirdy party D Third party
D was found to be from Iowa  court said no
JUR.
d. P cannot make claim against third Party D if
not complete diversity-rule 14a3 allows it but
no sup. Jur under1367(b)
e. P cannot implead in a joint tort feasor or
indemnify someone under rule 14b if it
DESTROYS -because sup. Jur. (1367) does not
allow it diversity-most courts read it as a P’s
claim)
i. Exception- if independent jurisdictional
basis for the claim (like arising under fed
law can bring it)
iv. Joinder by Non-parties (intervention)-right to intervene
under 24(a)(2)?
1. Interest in Action?
a. YES-go down to 2
b. NO-no right to intervene under 24(a)(2)
2. Impairment to Interest?
a. YES- go to 3
b. NO-no right to intervene under 24(a)(2)
3. Adequate Representation of Interest?
a. Yes –prob no right to intervene 24(a)(2)
b. No- and Yes to all of the above right to
intervene (if it is timely)
4. Cases:
a. Natural Resources Defense Council v. United
States Nuclear Regulatory Commission – party
may intervene under 24(a)(2) if he has an
interest upon which the disposition of the action
will have a significant legal effect (the party
allowed to intervene did not represent the
interests fully because already had a license)
b. Martin v. Wilks- a party may not be bound by a
judgment in an action in which he was not a
party even if he had knowledge of the action –
court allowed this collateral attack
28
c. Compulsory Joinder –must a party be joined?
i. Necessary Party- under Rule 19(a)
1. Availability of Complete Relief-can the court afford
complete relief among the existing parties in the party’s
absence?
a. Noa necessary party (go to feasibility)
i. REMEMBER Joint tort feasors are NOT
NECESSARY Parties!- Temple v. Syntehsis
b. Yes go to next question
2. Impairment to Absentee’s Claimed Interest- would
disposition of the action in the nonparty’s absence
impair or impede the nonparty’s ability to protect its
claimed interest relating to the subject of the action?
a. Yes necessary party (feasibility analysis)
b. No next question
3. Threat to Existing parties- disposition of the action in
nonparty’s absence leave existing party subject to
substantial risk of incurring multiple or inconsistent
obligations by reason of nonparty’s claimed interest
relating to subject of action
a. Yes necessary party
b. No and the previous answers received
negative responses NO a necessary party
under 19
ii. Feasibility of Joinder ?
1. Personal Jurisdiction?
a. No not feasible go to indispensible party
analysis
b. YES go on to SMJ
2. Deprived of Subject Matter Jurisdiction?
a. YES- not feasible (go to indispensible party
analysis)
b. No- feasible go to venue
3. Venue been objected to?
a. YES, If so is venue improper?
i. YES necessary party dismissed (but go
to indispensible action)
ii. No if PJ,SMJ and Venue feasible
(PARTY MUST BE JOINED)
b. No- if PJ and SMJ joinder feasible and
necessary party MUST be joined
29
iii. Indispensability of Party -19(b) –if the action is necessary
and not feasible should the court dismiss? (LOOK AT ALL THE
FACTORS!) –(Helzburg v. Valley west)
1. Resulting Prejudice-what is the extent that would
result from not joining necessary but not feasible party?
a. Significant-maybe indispensible
b. Insignificant –prob not indispensible
2. Lessening Prejudice- can this occur through
proptective provisions in a judgment, shaping of relief
or other measures?
a. Yes party may NOT be indispensible ; court
could retain jurisdiction over case and shape
relief to protect party’s interest
b. No prob indispensible
3. Adequacy of remedy- will the judgment be adequate
from the P’s prospective?
a. No party prob indispensible
b. YES party may not be indispensible (esp if no
prejudice or can be lessened or avoided)
4. Adequate remedy elsewhere? (if action dismissed?)
a. Yes- party prob indispensible and action should
be dismissed
b. NO- party prob not indispensible (don’t dismiss)
iv. Cases:
1. Temple v. Synthesis- REMEMBER joint tort feasors are
NOT necessary parties under Rule 19
2. Helzburg Diamond Shops v. Valley West Des Moines
Shopping Center- held tenant under a lessee that
violates a clause in another tenant’s lease from common
landlord is NOT an indispensible party under rule 19
d. interpleader
i. Rule is only good if what they are fighting over there is
complete diversity (stuatory more flexibility)
ii. Rule 22
iii. Statutory interpleader- 1335,1397, and 2361 (used more
often)
Issue
Statutory
Rule
Fed. SMJ
Minimal diversity,
Complete Diversity-Diversity
determined as
as determined
between claimants between
stakeholders and
claimants
Amount
$500
$75,000 +
PJ
Nationwide Service Ordinary Jur. Rules;
of Process
contacts with
30
claimants; service
under rule 4
Venue
Injunctions
(typically to freeze
assets or require
their delivery to a
claimant)
Residence of One
ore more claimants
Specifically
provided for in 28
USC 2361
31
Ordinary rule
under 28 USC 1391
No specific basis;
courts have used28
USC 2361
VI.
Erie
a. Diversity Action- only applicable to diversity action (not for federal
question)
b. Presence of Federal Rule or Statute
i. Federal Rule/statute  Hanna
ii. No Federal Rule/ statute (only fed. Common law) Typical
Unguided Erie Test
c. Hanna Analysis
i. Federal Rule on Point?
1. No go to typical unguided Erie Test
2. Yes according to Semtek v. Lockheed martin the
Federal rule should govern (hanna was on point but
Semtek rule was not on point)
ii. Does the rule comport with the Rules Enabling Act?
1. Does the rule abridge, enlarge or modify any
substantive right?
a. NO go to the constitutionality test next
b. YES Fed. Rule invalid and go to the typical
unguided Erie Test
iii. Constitutionality of Federal Rule or Statute?
1. Is it a procedural rule? (does the rule regulate judicial
process for enforcing rights and duties recognized by
substantive law and for justly administering remedy
and redress for disregard or infraction of them” Sibbach
v. Wilson & co.
a. Regulates ONLY substantive unconstitutional
because it conflicts with state substantive law
(unenforceable)
b. Regulates Procedural or both Procedural and
Substantive Constitutional and enforceable
d. Unguided Erie Analysis
i. Substance v. Procedure Test-is the law substantive (giving
duties of obligations for torts, K, property OR mere FORM or
Mode of enforcing those duties-which would be procedural)
1. Substantive-federal common law must yield to state
law
2. Procedural- go on to next question below
ii. Modified Outcome Determinative Test-i.e. Twin Aims of
Erie (originally laid out by Guaranty Trust v. York and
Modified by Hanna v. Plumer)
32
1. Forum Shopping-(if applied fed policy)?
a. Yes maybe follow State policy (but need to
balance other factors)
2. Inequitable Administration of the Laws-(if Fed.
Policy applied)
a. Yesin favor of state practice
b. No in favor of Fed. Practice
iii. Byrd Balancing Approach –balance outcome determinative
test with the state/federal interest
1. State Interest –is the state interest “bound up with the
definition of the rights and obligations of the parties”
such that the practice furthers some substantive policy?
a. YES-determine if there is federal countervailing
interest
b. NO-in favor of ignoring the state practice
2. Federal Interest –does it outweigh the state interest ?
a. Yes-follow federal policy
b. No-follow state policy (probably)
33
VII.
Other/Intro Material
a. Appeals- Must be final 29 USC 1291 and 1292
i. Interlocutory appeals allowed
ii. Motion to dismiss is final
iii. See Apex Hoisery co v. leader- interlocutory orders may not be
appealed
iv. EXCPETIONS
1. Mosley Case (court does not allow minority case to join
together  discrimination on basis of race)  allowed
appeal
2. Shoping cnter case preliminary injunction granted
helzburg preliminary injunction is appealable (1292
(a) )
b. Complaint
i. Bell v Novick Transfer co- a complaint that allages only that a
defendant negligently drove a motor vehicle and thereby
injured the plaintiff is sufficient under Rule 8
1. Also held that after removal federal rules of procedure
apply rather than the state procedural rules
c. Pre-Answer Motions
d. Answer and amendments
i. General denial-8b
ii. Counterclaims
iii. Affirmative defenses- 8c
iv. Amendments- liberal policies
1. 15a- rules for amendments
2. 15b- amendments during or after the trial
3. 15c- deals with amendments adding a new claim after
statute of limtiations
34