Morrison, Civil Procedure I (Fall 2013)
Personal Jurisdiction
In order to hear and decide a case, a court must have (1) jurisdiction over the parties involved (personal
jurisdiction); (2) jurisdiction over the subject matter involved (subject matter jurisdiction); and (3) proper
venue.
Need Power, notice, and opportunity to be heard
I.
The Traditional Basis for Personal Jurisdiction (Power over the Person)
a. Served while present in the state
 Burnham v. Superior Court (1990)
o Only requires D to be present at the time of service
o Presence can be brief, fairness NOT at issue
b. Domicile in state
 Owning property that is attached before litigation is also sufficient
c. Explicit or Implicit Consent to Jurisdiction
 Hess v. Pawloski (1927)
o Implied consent by driving on the roads
 Implied consent does NOT apply to corporations
o use of state resources
o concern about physical safety and state’s interest in having PJ
II.
Modern Jurisdictional Analysis
a. Minimum Contacts
 International Shoe v. Washington (1945)
o What is “sufficient presence” to get PJ?
o Corp. that chooses to conduct business in the state accepts a duty to answer for those
actions in that court (obtains “benefits and protections” of the laws)
o D voluntarily related to the state and jurisdiction is limited to cases arising from that
relation
o General Jurisdiction: substantial contacts (can be sued for anything in the state)
 Mostly applies to corporations
o Specific Jurisdiction: contacts sufficient enough to establish jurisdiction over claim
arising from those contacts
The Shoe Spectrum:
Extent of Contact
Decreasing contacts
Increasing contacts
no
casual or single, related continuous
contacts
isolated
act
but limited
1
General
|
|
substantial
|
or pervasive
Morrison, Civil Procedure I (Fall 2013)
Jurisdictional
Consequences





|_____|_________|__________|_____________|________|________|_____|
no
no
specific
specific
|
general
jurisdiction jurisdiction jurisdiction
jurisdiction
jurisdiction
Goodyear v. Brown (2011)
o Continues sales were NOT enough to establish general jurisdiction
o Corp’s are subject to general jurisdiction in their place of INC. AND principle
place of business
 NOT clear whether other places may suffice for GJ
o Ginsburg opinion: is a Corp. subject to PJ in a state for a claim that does NOT
arise out of contacts with the state?
o Test may be similar to the test for Diversity Jurisdiction which uses the “nerve
center” for the principle place of business
Minimum Contacts test is used for BOTH individuals AND corporations
“long arm statute” limitations on PJ are different from constitutional limit of minimum
contacts test
If D knowingly commits an act outside the state which will cause harmful effects IN the
state, D may be subject to minimum contacts for claims arising out of that act (Calder v.
Jones (1984); D subject to PJ for defamation which occurred in CA, even though D lived
in and wrote the article in FL because D aimed the article at CA and CA resident)
Effects Test
 Three requirements (Calder v. Jones)
o Intentional act
o Directed at the state
o Which D knows or should know is likely to cause harm, the brunt of which will
be suffered in the state
 Actually causes harm in the state
 Application
 Only wrongful acts causing harm within OR
 Commercial activity
 First amendment is not a relevant concern to the jurisdictional inquiry
 Simply infringing upon copyright or trademark is not enough: the act has to be
directed at the state
Minimum contacts focuses on time when the act occurred
b. Purposeful Availment
 D must purposefully avail itself of the privilege of conducting activities within the state,
invoking the benefits and protections of the law

World Wide Volkswagen v. Woodson (1980)
o Facts: NY car dealer sells car to NY resident consumer who has an accident in OK
and want to sue in OK
o Holding: D did NOT purposefully avail itself of OK, even though it could foresee
that a buyer could drive the car there (mobile nature of the product)
 NO sales in OK, NO advertising in OK, NO focus on OK as a market
2
Morrison, Civil Procedure I (Fall 2013)


Did NOT seek a benefit from OK that would subject it to jurisdiction there
The buyers unilaterally transported the car there and D had no control over
the movement of the product (could not anticipate being brought to court
there)

Keeton v. Hustler Magazine (1984)
o IN CONTRAST, D purposefully availed itself of the state by distributing
magazines there
o These contacts are sufficient to support jurisdiction
c. Stream of Commerce (test for “purposeful availment”)
 Asahi v. Superior Court (1987)
o Facts: foreign manufacturer sold component part to man. of finished product who
resold the final product and distributed it to CA
o Contacts: Over five year period Asahi shipped over a million valves to Cheng Shin.
Cheng Shin sells all over the world, 20% of US sales are in CA. Asahi knew its
valves would end up in the US, and CA.
o But: no direct sales in CA, no offices or agents, did not control the distribution.
o Holding: court was split (5:4) on whether a mere act of selling goods outside the
forum state could support jurisdiction
 Concurring Justices: putting goods in the “stream of commerce” (in
substantial quantities) IS enough for “purposeful availment”
- Maker can foresee sales there and benefit from sales there (regardless
of intentional direction of product there)
- Main focus is on reasonableness of litigating the case in CA when the
parties are two foreign corps
1. CA has NO interest in the case
2. Huge burden on parties to litigate in CA
 O’Connor dissent: rejected that mere awareness that the “stream of
commerce” could put a good into the forum state is enough to satisfy
“purposeful availment”
- He would want clearer evidence that D wanted to serve the market in
the forum state
Considerations:
• Reasonableness
- burden on D
- state’s interest in adjudicating
- International nature of case may have been significant
• Sovereignty
-respect sovereignty of states
Criteria for determining whether due process is satisfied by minimum
contacts + reasonableness:
1. Voluntary association with forum state
2. Inconvenience and burden on D
3. State interest in adjudicating-relationship of activity or parties to
state
4. Liberty interests of the parties
3
Morrison, Civil Procedure I (Fall 2013)
5. Sovereignty interests of states
6. Shared states interests in furthering substantive policies
 McIntyre v. Nicastro (2011)
o Facts: D is a foreign Corp. that produced a large metal sheering machine that was
sold in the US through a distributor that was completely owned by D
 D attended conventions in other states but never in NJ, where the plaintiff was
injured by the machine (NO more than four machines ended up in NJ)
o Holding: majority held that even though D had purposefully availed itself of the US,
it did NOT purposefully avail itself of NJ and could NOT be subject to PJ there
 One machine is NOT sufficient to support minimum contacts
 Strong dissent believes D wanted its products to go anywhere they could,
purposefully tried to reach as many customers as possible, and the machine
ending up in NJ was neither fortuitous nor random
- NO GJ, but why not SJ based on accident arising with that one contact
with the state?
- Subjection to jurisdiction may be the price to pay for doing
international business
- If subject to US law, why not NJ law?
- If the issue is fairness, HOW is it unfair to sue in state court but NOT
in federal court?
 What is the result of Asahi and McIntyre?
o Manufacturers of component parts who do NOT direct the product to the forum state
and sell the product elsewhere are NOT subject to jurisdiction
o If manufacturer sells product through a distributor, it will ONLY be subject to
jurisdiction for claims arising in the states where it directed the goods

Factors to consider in asserting personal jurisdiction under minimum contacts test:
1) Burden on 
2) State’s interest in adjudicating
3) ’s interest in convenient relief
4) Interstate judicial efficiency
5) Shared interests of states in furthering substantive policies

Burger King v. Rudzewicz (1985)
o Facts: D was in a 20 year contract agreement with a FL corporation which he broke
o Holding: (5) criteria may show reasonableness of jurisdiction when there are less
minimum contacts than are normally required
 Parties had a continuous contractual relationship which was purposefully
directed activity with the forum state
 D should have known that he could be haled to court in FL

Conclusions on minimum contacts
o No clear rule because court was split
o Brennan’s camp: there is a contact if I put my product into the stream and
reasonably anticipate that it will get to state
o O’Connor: just placing a product into the stream of commerce without targeting a
specific market is not enough (You need #1 PLUS an intent to serve states)/ World
4
Morrison, Civil Procedure I (Fall 2013)
o
o
o
o
Wide: There must be some effort to market in the forum state (either directly or
indirectly). The mere fact that a product finds its way into the forum state may not be
enough
Kennedy: D must direct his activity there (WWVW, McIntyre)
 Product designed and/or advertised in the state
 Channels for giving advice to consumers (like product fairs McIntyre)
 Marketing through distributor as agent
If an independent company is distributing the products there might NOT be
jurisdiction (Asahi, McIntyre)
Ginsburg: Targeting of US as a whole might be enough to give jurisdiction in the 50
states
With stream of commerce ’s purposeful availment of market results in location of
product and accident. Control of use of stream and decision to enter.
o Chattel as the agent: the court doesn’t want the product to be a roaming agent for
service of process
III.
Statutory Limits to Personal Jurisdiction
a. Long-Arm Statutes
 Grant states the power to exercise jurisdiction based on constitutional test of “minimum
contacts”
 Granted by statute
 Generally grant jurisdiction over specific acts require that the claim arise from the act itself
 Under International Shoe, limited in-state contacts only support jurisdiction over claims that
arise from those contacts
 Many long-arm statutes authorize jurisdiction over Ds who act outside the state, but cause
effects within the state
IV.
Property Based Jurisdiction
a. “in rem”
 Physical presence of property that is the subject of the dispute gives the forum power to
adjudicate
 State decides the “status” of the property and judgment is binding on all parties interested in
the property
 Must attach property at the beginning of the suit (Pennoyer v. Neff)
b. “quasi in rem”
 There is property in the forum state, BUT the claim does NOT arise from the property
o The property may be related to the controversy OR unrelated
 Shaffer v. Heitner (1977)
o Stock in corporation is at stake, but is unrelated to the claim
o Fortuitous presence of unrelated property is NOT sufficient for jurisdiction
o MUST establish minimum contacts
 Holding: abolished “quasi in rem” for unrelated property to the claim
V.
Challenging Jurisdiction in the Forum State
5
Morrison, Civil Procedure I (Fall 2013)
a. Direct Attack
 Special appearance: D may appear before the court at the beginning of the action to
challenge the court’s jurisdiction
o D may NOT raise any other objections or D is deemed to submit to jurisdiction
 Fed. R. Civ. P. 12(b): D may appear to challenge jurisdiction AND assert other merit
objections
 in both cases, the objection MUST be made at the beginning of the action, or D is assumed
to have waived the right to assert it
b. Collateral Attack
 D can ignore the suit and refuse to appear if he believes the state does NOT have jurisdiction
over him
o This can be dangerous because if the court DOES have jurisdiction, it will enter a
default judgment against D for failure to appear
 D can challenge the original court’s jurisdiction in the enforcement action and not in the
original suit
 The original suit will be enforced IF it is determined that the original court HAD jurisdiction
 D may NOT challenge jurisdiction in the enforcement suit IF he already challenged it in the
original suit
Notice and Opportunity to Be Heard
I.
Notice
a. Fed. R. of Civ. Pro 4: Service of Process
 For Individuals: (1) in person, (2) at D’s residence, or (3) via an appointed agent
 For Corporations: same as for individuals
 P can solicit a waiver of formal service to D
o D may want to do this because: (1) D has duty to avoid unnecessary expenses in
serving summons, (2) court imposes cost of service on D who doesn’t waive w/o
good cause, (3) gives D 60 days to respond instead of 20
 Personal jurisdiction and service are NOT the same thing (you can one w/o the other)
 Publication is NOT adequate for service
o Mullane v. Central Hanover Bank (1950)
 Beneficiaries of a trust were NOT properly notified of a suit against the bank
for mismanagement of the funds
 Service in newspaper NOT sufficient for beneficiaries with known addresses
 Service in newspaper OK for those with unknown addresses
a. Notice did NOT have to reach everyone because there were other
parties who could represent the same interests
b. Consider factors of adequate representation and stake in the claim to
determine adequacy of representation
o Dusenberry v. United States
6
Morrison, Civil Procedure I (Fall 2013)

Court determined that service was proper for prisoner when sent to prison,
home address, published in newspaper, etc.
a. Distinguished from Mullane because there was much more at stake
and no other representatives for the property
b. Rules do NOT require actual notice, but that the notice was rxably
calculated to reach D
o Jones v. Flowers
 Service NOT proper when mailed to address only once and city failed to
attempt to notify D again of the suit
a. Minimal costs in attempting notice again to preserve due process
II.
Opportunity to Be Heard
a. D must have the opportunity to present her position to the court before her property or assets
are seized
b. What’s at stake?
 Property (attachment)
 Wages (garnishment)
o Sniadach v. Family Finance Corp. (1969)

Wisconsin wage garnishment procedure violated due process
 Point of due process is to allow notice and hearing for D to appear before
depriving him of his property/assets
o Fuentes v. Shevin (1972)

D bought a stove which she was making payments on, but refused to pay
once P refused to honor the service contract
 She had no notice or opportunity to be heard before her property was seized
 Court ruled that writs of replevin are unconstitutional (denial of notice and
right to be heard before seizure of property)
a. Opposes Shaffer: not appropriate just to attach property at the
beginning
Venue
I.
28 U.S.C. § 1391 (The Federal Venue Statute)
a. Action may be brought in:
 D’s residence
 Where the claim arose
 Any place D is subject to PJ (rare, only a “fallback” when no other venue is proper)
b. Venue based on “residence”
 § 1391(c) provides that a “residence” is where D is domiciled for the purposes of venue
o D can have only one domicile (for individuals, corporations may have two)
7
Morrison, Civil Procedure I (Fall 2013)
c. Venue based on “substantial part of the claim”
 Location of the claim can be disputed if a single claim had multiple locations in which it
arose (i.e. in trademark infringement, the harm can occur in many states)
 § 1391(b)(2): “where the claim arose” formula allows multiple Js to be appropriate for
venue if a “substantial part” of the claim arose in any of those locations
 Bates v. C&S Adjusters, Inc. (1992)
o Venue was proper in NY, even though the debt did not occur in NY and D did not
live or do business in NY
o BUT, a collection notice was forwarded to NY and D did not object to this so it
constituted “substantial part” of the claim and venue was appropriate
d. Venue is “waivable”
 Venue is a privilege of D and D has the option to waive a convenient forum for a less
convenient forum
 D also waives choice of venue if she does not object to it in response to P’s complaint
 Contracts often lay out venue choices which are upheld by courts, even if the venue is
inconvenient for D because parties agreed to it
e. Venue options apply as long as there is no other law governing venue
 There are special venue provisions for things like patent infringement, copyright suits,
interpleader actions, and actions against federal officials
f. Removal venues are NOT governed by § 1391
 Removal venues are governed by § 1441 and the venue for removal is the federal court in the
same state where the original state court suit was filed
II.
Transfer under § 1404
a. Where a suit can be transferred:
 For convenience of parties, district court can only transfer an action to another district where
it may have been brought originally OR to which all parties have consented
 Hoffman v. Blaski (1960)
o Ps (Illinois residents) filed action against D (Texas corp.) IN Texas fed. court
o Ds filed for transfer to Illinois federal court
o SC says transfer was inappropriate because Ps could NOT have brought the suit in
Illinois in the first place, so Texas district court does NOT have the power to transfer
it there
b. Multidistrict Litigation
 § 1407 allows for temporary transfer of related cases to one district when there are common
questions of fact and law and is for convenience purposes
o Generally used just for discovery purposes
III.
Forum Non Conveniens
a. Court’s ability to resist hearing a case, even if it is allowed by venue statutes, because the
forum is inconvenient to the parties or witnesses
8
Morrison, Civil Procedure I (Fall 2013)
 Arose to prevent P from litigating in the most inconvenient forum possible for D, even at P’s
own expense, as a harassment tactic
 Gulf Oil Corp. v. Gilbert (1947)
o Want to prevent litigation build up at popular venues
o Local interest in hearing cases at the home forum
o Avoid injustice to D by harassment tactics of P
 Piper Aircraft Co. v. Reyno
o Plane owned by a British company and operated by Scottish company carrying all
Scottish passengers and crashed in Scotland (BUT plane manufactured and tested by
US company)
o Evidence pointed more towards pilot error and NOT defect or improper testing
o Suit was filed in district court of CA by an American administratrix
o SC ruled that district court properly dismissed the case on forum non conveniens
because CA is not an appropriate venue
 Not fair to allow foreign Ps to take advantage of more favorable US laws
 Not fair to force D to litigate in extremely inconvenient forum
 Not fair to juries to hear cases on foreign law which CA has no interest in
 More fair to try the cases together where the claim arose or best forum (based
on witnesses, evidence, residence of parties, etc.)
Subject Matter Jurisdiction
►Power of a court to hear a case given the nature of the dispute
 In state court, determined by state constitutions, state statutes, and judicial decisions
 In federal court, governed by Article III of the Constitution, federal statutes, and judicial decisions
I.
Diversity Jurisdiction
a. Under Article III, corporations are “citizens”
 “domicile” is the place of Inc. and the principle place of business
 For purposes of federalism, Congress limits the definition of “citizen” to limit the number of
suits that can be brought in federal court (we want state courts to hear any claims possible)
 Article III does NOT require complete diversity among the parties, BUT § 1332 (statute)
limits cases that can be brought in federal court by imposing the “amount in controversy”
requirement
o Thus, statutory diversity is narrower than constitutional diversity
b. § 1332 (Diversity of Citizenship)
 Under § 1332(c)(1): a corporation is a “citizen” where it is Inc. AND where it has its
“principle place of business”
o Focuses on the daily conduct of the corp. (where it employs most people, conducts
bulk of its activities, interacts with public)
o Other courts use the “nerve center” test
9
Morrison, Civil Procedure I (Fall 2013)
a. Focuses on where the corporate operations are directed by officers and
directors of the company
b. SC has adopted this test unambiguously (Hertz Corp. v. Friend)
c. Prevention of prejudice
 Federal courts are supposed to be “fairer” to out-of-state Ds
 Uniformity of rules in any federal court is more predictable
 Federal courts may have more seasoned judges who know the laws better and are less biased
 Juries in federal court may be more diverse
 Diversity clause allows for “forum shopping” so parties can have the most fair forum
d. Determining Citizenship
 Domicile is the state where the party intends to remain indefinitely
o To determine “intent to remain indefinitely”, courts look to driver’s licenses, voting
registration, taxes, etc.
o Subjective standard that looks at intent and actions by party
 Residence is NOT necessarily sufficient to support citizenship of that state (many people
have residences in multiple states, but that does NOT mean they are domiciled in all of those
states)
 Mas v. Perry (1974)
o Husband was French citizen and wife was resident of Mississippi, D was Louisiana
resident
o Both were grad students at LSU and lived in LA for their studies and rented an apt
from D (who was spying on them via cameras in the apt)
o Suit was filed in federal court on diversity grounds, which D appealed, stating that
wife was really a LA resident and thus no diversity J
o Court says residence is the person’s permanent domicile, which was MS in this case,
so diversity J was proper
a. Judge improperly failed to consider where wife’s true domicile was to
determine if the case should have been in federal or state court
o The cases could have been combined in federal court under § 1367 IF the cases are
part of the same case or controversy (which they clearly are in this case)
a. § 1367 does NOT mandate complete diversity, so even if wife was LA
resident, she could be brought into the suit after her husband’s claim (he is an
alien and diversity is always proper)
II.
Amount in Controversy
a. Under § 1332(a): federal courts have jurisdiction of all civil actions where the amount in
controversy equals or exceeds $75,000 and all other requirements of diversity jurisdiction are met
 A.F.A. Tours, Inc. v. Whitchurch (1991)
o Lower court improperly dismissed the case by not allowing P to show that its
damages should exceed the minimum amount in controversy
o If P has made an estimation in good faith, dismissal is improper UNLESS there is a
legal certainty that the amount will not exceed the minimum
10
Morrison, Civil Procedure I (Fall 2013)
a. It is better to allow a claim that is questionable on the amount to go forward in
federal court than to deny jurisdiction when P may have a proper diversity
claim
b. It is difficult to apportion pain and suffering, emotional distress, punitive
damages, etc., so cases should not be thrown out when those factors could put
it over the minimum
III.
Federal Question
a. Under Article III, federal courts are only permitted to hear cases whose subject matter
involves a question of federal law or a constitutional question
 Promotes federalism and limits the number of cases brought to federal court
 If the case involves a state law matter, the federal court will send it to state court to be
decided before any federal questions will be decided
 The language “arising under” is defined very broadly by Article III
b. How does the Supreme Court decide which cases to hear?
 When circuit courts disagree on how to decide the question of federal law
 When it is an issue that has not yet been presented
 When the question conflicts with a prior SC ruling
 All cases against federal agencies are brought into federal court because state courts do NOT
have the power to tell federal agencies how to operate
c. § 1331 (Federal Question) grants original jurisdiction to district courts for any question arising
under the Constitution, laws, or treaties of the United States
 Even though the language in § 1331 is the same as the language in Article III, § 1331 only
grants jurisdiction to the district courts if the plaintiff’s claim requires proof of federal law
 Louisville & Nashville R. Co. v. Mottley (1908)
o Mottleys were injured in a railroad accident and settled by accepting lifelong railroad
passes from the railroad co. (which the railroad honored for more than 30 years)
o Congress passed a statute barring railroads from giving free passes and the railroad
stopped honoring the Mottleys’ passes
o The district and appellate courts agreed that the case arose from a federal question
(whether the statute was prospective and if it violated the 5th Amendment)
o However, Supreme Court said that the Mottleys’ claim arose from a state tort claim,
NOT a federal question
a. Mottleys were anticipating the federal defense that would be used by D to say
that the claim arose from a federal question
b. Under § 1331, the federal question must arise from P’s claim and be
necessary for her to prove her claim
i. It CANNOT be based on speculative federal question defenses that
may be raised
ii. This “well pleaded complaint” rule allows for courts to determine J
at the beginning of the suit, without an answer from D and provides
uniformity and does not rely on speculation by Ps
11
Morrison, Civil Procedure I (Fall 2013)
iii. Cases that do NOT arise from federal questions may eventually end up
in the federal court system but MUST go through the state courts first
 Osborn v. Bank of the United States (1824)
o Auditor went into bank and forcibly took money that he claimed the bank owed to the
state
o Suit was filed in the federal court system because the bank is a federal agency (D
appealed for want of subject matter jurisdiction)
o Because the bank was chartered by Congress and did business for the US, it could sue
and be sued in any circuit court
o BUT, is this the right ruling?
a. Morrison says NO!
i. Just because the bank is a federal entity shouldn’t give Congress the
power to give the district courts the power to hear any case in which it
is a party
ii. The main issues was the constitutionality of Ohio’s tax law, but the
cases that are brought against federal institutions are brought in federal
court ONLY if they can’t be brought in state court
IV.
Supplemental Jurisdiction
► “pendant jurisdiction”: P appended a claim lacking an independent basis for federal jurisdiction to
a claim possessing federal jurisdiction
► “ancillary jurisdiction”: P or D alleges a federal question now via a counterclaim, crossclaim, or 3rd
party complaint, when no federal question existed at the beginning of the suit
a. Pendant Jurisdiction
 Federal courts may have jurisdiction over a state law claim IF it is joined with the federal
law claim
 Article III encourages all claims arising from the “same case or controversy” to be tried
together, even if it involves a state claim in addition to a federal claim
 Once judge decides he has the power to hear the case, he must decide if he should hear the
case based on these factors:
o Does the state law claim predominate?
o Would the federal court have to decide a controversial state law issue?
o Would there be jury confusion in combining the claims?
o Can the federal claim be resolved early, leaving only the state claim to be decided?
 If the federal court declines jurisdiction over the state claim, the claim can be raised in state
court in a new suit
 United Mine Workers of American v. Gibbs (1966)
o Gibbs was laid off at his job as superintendent of a mine and claims both statutory
and common law violations by the Union
o SC decided that this case was properly tried in federal court because both claims
arose out of a “common nucleus of operative fact”
12
Morrison, Civil Procedure I (Fall 2013)
a. The federal and state claims signify only one constitutional case
b. It is efficient to try both claims together when they arise from the same case
AND the claim was already in the federal court so it would be inefficient to
send it to state court when it can properly be heard in federal court
c. IF the federal claim is only an appendage to the state claim, which
predominates, the state claim is rightfully dismissed
 The principles of res judicata are furthered by allowing state claims to be heard in federal
court because P must bring all claims in the beginning to avoid unfairness to D
o Federal judges may decide at any time in the suit that they cannot hear a case because
the state claim predominates because it may not be apparent at the beginning of the
suit WHICH claim will be the main claim
o NO bright line rule because we don’t want under- or over-inclusion that would limit
cases that can be brought in federal court
b. Ancillary Jurisdiction
 Similar to pendant jurisdiction and under the same rational as Gibbs, federal courts have the
power to hear a counterclaim that asserts a state law claim IF it is attached to a claim that was
properly heard in the federal courts originally
o If the counterclaim, though it could NOT have been brought in federal court by itself,
has a “logical relationship” to the federal main claim, the federal court can hear it
o Ancillary jurisdiction also extended to crossclaims (Rule 13) and intervention (Rule
24), but NOT to permissive counterclaims because they arise from a different set of
facts (Rule 13)
 “Pendant Party” jurisdiction: P’s attempt to add a jurisdictionally insufficient claim against
one D to a jurisdictionally proper claim against a separate D
o Aldinger v. Howard (1976)
a. P was fired from her job and asserted a federal claim against her employer and
then sought to add a state claim based on the same principle against the
Spokane County
b. SC says this was improper because, even though it arose from the same case
or controversy, it went against Congress’s intent to bar civil rights claims
against counties
i. Thus, when a statute expressly denies the ability to bring a suit in
federal court, the federal court does NOT have the power to hear the
case
c. § 1367 (Supplemental Jurisdiction)
 Allows the federal courts to have jurisdiction over any claims that arise from the same “case
or controversy” as the claim over which the court has original jurisdiction
 If the court has jurisdiction based ONLY on diversity, the federal court will NOT have
supplemental jurisdiction over claims under Rules 14, 19, 20, or 24 or parties sought to be
joined under Rule 19 or parties seeking to intervene under Rule 24 when exercising
jurisdiction would be inconsistent with the requirements of § 1332
13
Morrison, Civil Procedure I (Fall 2013)
o If a rule isn’t explicitly excluded by Congress, the courts assume it may be brought in
supplemental jurisdiction
o Essentially limits the number of cases that can be brought in federal court by
enforcing the diversity requirements
o This statute overruled Finley (in which the court found that pendant parties over
which the court had NO original jurisdiction could NOT be brought into a case
against the United States, over which the court DID have original jurisdiction
because § 1346 did not expressly allow it)
d. Summary
 First, does the federal court have the constitutional power to hear the supplemental claim?
 Second, does the statute grant jurisdiction over the supplemental claim under § 1367?
o Does § 1367(b) disallow jurisdiction over this claim?
 Third, under its discretionary power, should the federal court hear the supplemental claim?
V.
Removal
a. § 1441 (Removal)
 Choosing a forum is a matter of fairness, so both D and P should be able to choose the
federal court system if the claim involves one that is properly heard by the federal court
 If P could have brought the claim in federal court (based on diversity or federal question), D
may remove the case to federal court
o D may NOT remove (under § 1441(b)) if he was sued in the state court of his
domicile (rationale that there will be no prejudice to litigate in one’s own state court)
o D may ONLY remove to the federal court in the district in which the state claim was
filed (under § 1441(a))
 All of the claims of the case will be removed with the claim under which D can assert
removal under supplemental jurisdiction
 Hertz Corp. v. Friend (2010)
o Court used the “nerve center” analysis to determine the “residence” of a corporation
that was insolvent
o “nerve center” analysis makes for simple rule that tells both parties where suit will
be filed in the beginning and lends predictability to judges
a. Avoids sideshows
b. Scalia thought legislative history was garbage
c. Breyer thought the court can’t do anything about it until legislature changes it
d. Morrison believes legislative history is important to understand the meaning
behind the wording
o Problem arises with the amount in controversy because many states do not allow Ps
to state how much they are seeking in the beginning so how do we decide if the
federal court would have had original jurisdiction over the claim?
b. Removal Procedures (§§ 1446, 1447, and 1450)
 Once the case has been removed, the state claim will be filed with the notice of removal (§
1446(a))
14
Morrison, Civil Procedure I (Fall 2013)
 The court may order the parties to file discovery or other filings in the state court for use in
this action (§ 1447(b))
 If the state court had entered orders, such as attachment, the orders remain in effect in the
federal court unless modified by the federal judge (§ 1450)
 Davis v. City of Shreveport Police Dept. (2012)
o P filed a libel and slander complaint in state court against a radio station KSLA (LA
resident) and against the police dept.
o Police dept. removed to federal court for federal question jurisdiction
a. KSLA claimed it never consented to removal
o Under § 1446(b), if all parties are properly joined and served, removal is proper
unless one of the defendants contests removal within 30 days
a. Since KSLA objected within a reasonable time, removal was improper
Pleadings
► Pleading rules serve 4 functions: (1) providing notice of the nature of the claim to the defense, (2)
identifying baseless claims, (3) setting each party’s view of the facts and, (4) narrowing the issues
I.
Complaints
a. The Process
 P’s lawyer first files the complaint in the court of choice and serves D with notice
o The complaint must have a clear and concise statement of the facts and must include
all that material facts for P’s complaint
o It must give D reasonable notice of the basis of the complaint and does NOT need to
be more detailed than that
o Under Rule 8, a complaint may NOT be dismissed for failure to state a claim unless
it is clear that the facts will NOT support a claim that will grant P relief
 D has 21 days to answer the complaint under Fed. R. Civ. P. 12
o D may file a motion for dismissal on the merits or for lack of jurisdiction also (Rule
12)
b. Rule 9 (Pleading Special Matters)
 Denny v. Carey (1976)
o Ps allege that First Penn was fraudulently conspired to conceal the financial situation
of the company by inflating their equity and net income
o First Penn argued that the complaint was NOT sufficiently specific to comply with
Rule 9(b), which requires “particularity” when alleging fraud or mistake
o The court says Rule 9 does not require “rigorous” pleadings, especially when the
evidence is in the hands of D, as long as the complaint states sufficient identification
of the circumstances constituting fraud so D can answer
a. D here had plenty of notice as to what the complaint was about
15
Morrison, Civil Procedure I (Fall 2013)
b. It is better to allow Ps to move forward with less facts if they are unknown
than to throw out a case for lack of detail which may end up being a valid case
 Why is “mistake” even in the same clause as “fraud”?
o Makes the rule either underinclusive because it doesn’t include things that are just as
bad as fraud OR
o Overinclusive because mistake is NOT about reputation, which some purport that the
rule is about
c. Rule 8 (General Rules of Pleadings)
 Only requires that the complaint contain “a short and plain statement of the grounds for
the court’s jurisdiction, of the claim showing pleader is entitled to relief, and a demand
for the relief sought”
 Swierkiewicz v. Sorema (2002)
o P alleged a violation of the Civil Rights Act for his termination, which he claimed
was discriminatory based on his nationality and age
o D argued that P did not establish a prima facie case of discrimination in his complaint
(which D argues is required under Rule 8)
a. SC says that stating a prima facie case is an evidentiary requirement, NOT a
pleading requirement
i. NOT appropriate to require P to plead facts because will likely not
have access to these facts with discovery, as they are in D’s control
ii. As long as the complaint states sufficient facts to put D on notice of
what he is defending, it is proper
 Rule 8 does NOT require a heightened pleading requirement
 Bell Atlantic Corp. v. Twombly (2007)
o P alleged that major telecommunications companies were conspiring to prevent local
companies from taking over any part of the market and in keeping the areas
concentrated in order to control the market
a. P’s facts showed parallelism, but not conspiracy and P could not show that
P’s acted in concert and not that they were just acting to further their business
interests
o SC says though Rule 8 does NOT require a heightened pleading, but it DOES
require that P show a concrete right to relief, NOT just simple conclusions and
restatements of the cause of action
a. P could NOT show facts to support conspiracy, so his complaint was
insufficient to go forward
o Dissent (Stevens and Ginsburg): majority improperly dismissed the case w/o
requiring D to answer the complaint, as is required by the Rules
a. There is no material difference between “facts” and “conclusions”
b. Majority should have ordered more discovery and required D to answer before
it dismissed a well pleaded case
16
Morrison, Civil Procedure I (Fall 2013)
o It seems the court has construed Rule 8 to require a “heightened pleading”, which
isn’t exactly in line with the language in the rule
a. Only a claim that states a plausible claim for relief can survive dismissal
 Ashcroft v. Iqbal (2009)
o P, an Arab Muslim, alleged that his detention in a maximum security facility as a
person of “high interest” was discriminatory
o Post-Twombly, his complaint must allege more than simple conclusions or
restatements of elements of the claim
a. The complaint must allege facts that are facially plausible to support P’s
claim for relief
b. P alleged that Mueller and Aschcroft, two high ranking gov’t officials, knew
of and sanctioned his imprisonment based on discrimination after 9/11
o SC says that to show discrimination, his complaint must show that Ds purposefully
adopted a policy to discriminate against Muslims and classify them as persons of
“high interest” and put them in a maximum security facility
a. P did NOT show purposeful discrimination, just that Ds approved his
restrictive conditions of confinement
b. Rule 9 excuses discrimination claims from “heightened pleading”, but the
requirements of Rule 8 must still be met
c. the majority rejects the reasoning in Twombly (ironic since dissenting judge
here wrote the majority opinion for Twombly)
o Dissent (Souter, Stevens, Ginsburg, and Breyer)
a. P’s complaint shows, at a minimum, that Ds were aware of the discriminatory
restrictive confinement of Arab Muslims and did nothing to stop it
b. Dissent believes the complaint showed facts that were plausible on their face
to show discrimination and P should have been allowed to continue with the
complaint
o The true issue is plausibility (Do we believe that these officers ordered the prison
guards to implement this practice after 9/11)
a. Morrison believes it is highly unlikely that the guards did this themselves and
that it did not come as an order from higher up
b. “plausibility” is a loose standard and is a question of fact for the jury, so it is
improper to let judges dismiss cases based on this standard
d. Rule 11 (Signing Pleadings…Representations to the Court; Sanctions)
 Rule 11 requires that lawyers conduct reasonable prefiling investigation of claims and to
certify that court papers (not just the pleadings) were grounded in law and fact
o Rule 11 imposes mandatory sanctions for noncompliance with the rule
o May also require P (and potentially the lawyer) to pay D’s attorney’s fees if the claim
was fraudulent
 Problems: imposes sanctions on the client for legally frivolous suits (which is harsh since a
client wouldn’t know what is legally frivolous and what isn’t) and allowed Ds to use it as a
scare tactic to get Ps to drop suits
17
Morrison, Civil Procedure I (Fall 2013)
o the 1983 amendment now only imposes sanctions on clients for factually fraudulent
claims, not legally fraudulent claims
o amendment also allowed sanctions to be discretionary instead of mandatory
o amendment now includes a 21 day “safe harbor” period for pleadings to be fixed if
they are incorrect
 Post-Twombly and Iqbal, Ps are afraid to bring claims that they don’t have enough
information to prove facially, even if they have valid claims that could be validated in
discovery
 Hadges v. Yonkers Racing Corp. (1995)
o P was a racehorse driver who let his licenses expire a few times and after he got it
reinstated, he claims the racing corp. wouldn’t let him race and barred him from
racing in other NY venues
o P and his lawyer put in the pleading that P hadn’t worked for 4 years (which was
shown to be false) and provided a “scratch sheet” that showed D did not let him race
in 1989 while fully licensed (which was shown to actually be from 1987 when he was
unlicensed)
o The district judge sanctioned P and censured the lawyer and chastised him for taking
on unpopular clients
o Rule 11 allows an attorney to rely on the representations of his client, as long as he
has reasonably investigated them for the pleadings
a. the lawyer here reasonably relied on P’s representations and censure was
improper
II.
Motion to Dismiss
a. Rule 12(b)(6) allows a motion to dismiss for failure to state a claim upon which relief can be
granted
 If P has no legal right to remedy, even if he proves that the facts in his complaint are true, D
can file a motion to dismiss on the merits and it will be properly dismissed UNLESS;
o P can amend the complaint to state a compensable claim before the case is dismissed
 American Nurses’ Association v. Illinois (1986)
o Ps alleged sex discrimination in employment in violation of the Civil Rights Act and
Equal Protection clause of the 14th Amendment
o Ps point to a comparable worth study to prove discrimination
a. the real question is whether the complaint included intentional
discrimination
b. it is clear that either D did not know that the study+its actions could suffice
OR P did not know that the study was NOT enough to show discrimination
o district court dismissed the claim for failure to state a valid compensable claim
o Appellate court says the complaint should NOT have been dismissed, but amenable
for a more definite claim
18
Morrison, Civil Procedure I (Fall 2013)
a. P is NOT required to show all the facts in the pleading (as detailed by Rule 8),
and should be allowed to fix the complaint to state a true claim before
dismissal is proper
b. P simply got the law wrong in this case
b. Waiver of Defenses under Rule 12
 Certain objections must be raised in the beginning of the suit (in the answer), otherwise D is
assumed to have waived these defenses:
o Objection to PJ
o Objection to venue
o Objection to form of process
o Objection to method of service
 “deemed” waiver is for efficiency reasons, as they are easy fixes and we don’t want to
pursue a suit that the court had no power to hear, etc.
 Rule 12(b)(6) (failure to state a claim) is NOT waived because it is based on the merits and
discovery must be done to establish whether the parties have claims
 Objections to PJ are not always so easy (think International Shoe, where J was only
determined after discovery, BUT think Hess where it was very easy to show that the forum
had J over D)
III.
Amendments
a. Rule 15 (Amended and Supplemental Pleadings)
 As a matter of right, all parties are given the opportunity to amend once w/o having to make
a motion that must be granted by the judge
o Rule 15(a)(1) states that a party has 21 days after serving the complaint OR 21 days
after response from D to file an amendment
o Parties are allowed to amend because discovery frequently produces evidence that
may change the legal or factual statements in the complaint
 Moore v. Moore (1978)
o Father brought a custody suit and Mother did NOT include child support or her own
request for custody in the answer
o Through the course of the trial, the court determined that where the child would live
and how he would be supported was a main issue and granted custody to the mother
and demanded child support from the father
o Father alleges abuse of discretion by the court for allowing a post-trial amendment
and affirmative relief that were NOT stated in the pleadings AND that he did not
have notice of the amendments
o Court says that the father should have been aware of issues that arose in the case,
even if they were NOT stated in the pleadings
a. Court assumes that if a party does NOT object to issues that are different from
the issues raised in the complaint, he has waived the right to object based on
implied consent
19
Morrison, Civil Procedure I (Fall 2013)
b. Motion to amend
 After the 21 day right to amend, parties must file a motion to amend, which is granted or
denied at the discretion of the judge
 Judges may be less likely to grant the motion if:
o The amendment asserts a legally insufficient claim (fails to state a claim upon which
relief could be granted)
o There would be clear prejudice to the opposing party if the amendment were allowed
a. Likely due to delay or lack of evidence
o The judge concludes the party has acted in bad faith (tactic to inconvenience the
opposing party)
o The party already had sufficient opportunities to amend and failed to do so when the
claim or defense was available
c. Relation Back under Rule 15(c)
 A pleading may be amended after the period of limitations if it “relates back to the date of
the original pleading and arises from the conduct, transaction, or occurrence set forth
in the original pleading”
o Since the purpose of the limitations period is fairness to the defendant to be on notice
of what he is defending, if the amendment relates to the same facts that gave rise to
the original suit, D is already on notice of the facts he is defending
 Relation Back for a new party must meet the following criteria:
o The claim against the new party arises from the same conduct, transaction, or
occurrence as the original claim
o The new party had notice, within the period of limitations for the original suit that
the action had been filed
o The new party knew or should have known that, but for the mistake as to the identity
of the proper party, the original action would have been against him
 Worthington v. Wilson (1993)
o P was injured when he was arrested by police officers and filed his claim against
“three unknown police officers” on the day that the limitations period expired
o He filed a claim against the town for respondeat superior, but when they moved for
dismissal, he dropped the claim and sought leave to amend his complaint to include
the new parties (the police officers) to his complaint
o Court says that relation back for new parties only applies when the complainant
made a mistake as to the name of the party
a. It is NOT allowed when the actual identity of the party was unknown at the
time of the complaint
b. Since P did not know the names of the officers at the time of the complaint,
they had no notice that a suit was being filed that should have named them
during the period of limitations, relation back is NOT allowed in this case
c. Affirmed the dismissal due to the statute of limitations
 Relation back time frame
o Under Rule 4(m), parties have 120 days from the date of filing the complaint to
notify the original defendant of the suit
20
Morrison, Civil Procedure I (Fall 2013)
o Rule 15(1)(C) expressly refers to the Rule 4(m) time limit, which means that Ps have
120 days to notify new parties of the amendment, as long as the other criteria for
adding new parties are met
 Krupski v. Costa Crociere (2010)
o P was injured on a cruise and sued “Costa Cruise” 3 weeks before the limitations
period expired
o after the period had ended, “Costa Cruise” informed her that it was the wrong party
and moved for summary judgment, P moved to amend her complaint to add “Costa
Crociere” as a party to the suit
o P’s case was dismissed by the appellate court because it thought she did NOT make a
mistake and failed to notify the new party in a timely fashion under Rule 15
o SC disagreed
a. P did NOT deliberately sue the wrong party when many facts supported her
conclusion that she HAD sued the right party originally
b. The focus is NOT on what P knew, it is on whether D knew or should have
known that it was the right party, but for P’s mistake
c. Rule 15 does NOT require a time frame for P to file an amendment, so the
“timeliness” of her filing is NOT at issue, only the “timeliness” of her notice
to D under Rule 4(m)
d. “Costa Crociere” knew or should have known that it was the correct party for
the suit and facts were clearly from the same transaction or occurrence, so
P’s case should NOT have been dismissed for a violation of Rule 15
Joinder of Claims and Parties
► Joinder of parties is governed by Rule 20, counterclaims and crossclaims are governed by Rule 13, and
joinder of claims is governed by Rule 18
I.
Counterclaims and Crossclaims
a. Rule 13 (Counterclaim and Crossclaim)
 Rule 13(a): if the defending party’s counterclaim arises from the same transaction or
occurrence as the original claim, it is a compulsory counterclaim
o D must assert the counterclaim in the original action, otherwise he loses the ability to
assert it later
o Promotes judicial efficiency to force parties to litigate all claims arising from the
same set of facts in a single action
 Rule 13(b): if the defending party’s counterclaim arises from a different set of facts that are
unrelated to the original claim, it is a permissive counterclaim
o Judges are unlikely to allow this counterclaim and will likely order it to be litigated
separately, but the option is available to Ds
21
Morrison, Civil Procedure I (Fall 2013)
 Rule 13(g): a party that asserts a claim against a co-party that arises from the same
transaction or occurrence is asserting a crossclaim (because they are on the same side of the
litigation)
 United States v. Heyward-Robinson Co. (1970)
o P sued in federal court to recover payments due on the Navy Job (gov’t work grants
SM J so it is properly in federal court)
o D counterclaimed for overpayments on BOTH jobs
o P counterclaimed for payments due on the Stelma job (a civilian job)
o D moved to dismiss, claiming that the court did NOT have J over the civilian job
(after it had asked to join the claims)
o Court says the question is whether the counterclaims were compulsory or permissive
a. If permissive, the court had NO jurisdiction over the Stelma claim
b. If compulsory, J was appropriate based on the SM J over the Navy job
i. Court determined the claims had a “close and logical relationship”
and were therefore compulsory
ii. Looked to the payments and determined that they could NOT be
separated and looked at conduct of the parties
1. Morrison says this is WRONG, subject matter jurisdiction is
NOT based on the conduct of the parties during litigation
(court should have looked at the contract at the beginning)
o Problems arise when we try to analyze this under § 1367, because supplemental
jurisdiction can only be asserted over claims that arise from the same case or
controversy, which is NOT the same as same transaction or occurrence
a. Maybe no counterclaim cases had arisen and Congress didn’t think about it to
include it in § 1367(b)
b. REMEMBER: must always assess (1) jurisdiction and (2) same case or
controversy
II.
Mandatory Joinder
a. Rule 19 (Required Joinder of Parties)
 Rule 19(a)(1)(A): requires joinder of parties without whom P would not receive adequate
relief
o These parties are mandatory to litigate the case
o There may be issues with jurisdiction by forcing a party to join the litigation (might
destroy complete diversity requirement for subject matter J)
a. If this is the case, the court must decide if the case can proceed w/o the party
and be fair to P, or if it must dismiss and P must file a new claim in a different
court
III.
Interpleader
► allows the party who might be subject to multiple claims to money or property under her control to settle the
controversy in the same suit
22
Morrison, Civil Procedure I (Fall 2013)
a. § 1335 (Interpleader)
 courts shall have original jurisdiction over any civil action of interpleader if:
o The property or money is valued at $500 or more
o There are two or more adverse claimants w/ diverse citizenship
o The stake is deposited in the court’s registry
 Interpleader rules eliminate the need for complete diversity
 § 1397 allows venue in a district court where any of the claimants resides
 § 2361 allows service of process anywhere in order to reach all the claimants
b. Rule 22 (Interpleader)
 Allows any parties who are permissible under Rule 20 to be brought in under interpleader to
resolve disputes over claims to property or money
 Exists to prevent undue harassment to party who may be subject to double or multiple
liability for the same incident
 Pan American Fire & Casualty Co. v. Revere (1960)
o Insurance co. filed an interpleader action on behalf of its insured (the driver who
allegedly caused the accident) to force all claimants to litigate in the same court and
to estop them from bringing claims in other forums
a. Parties did NOT dispute litigating in the same forum because they were all
residents of the forum
o Pan Am. Alleged it had “no interest” in the case and posted the $100,000 limit in its
policy with the court registry
a. Strict interpleader: P is a disinterested stakeholder
b. In the nature of interpleader: P has a stake in the claim
o Pan Am. had the right to interpleader here and it was granted, forcing all claimants to
resolve the claim in one forum
a. The court then apportions the damages
b. Court has the power to enjoin state proceedings in order to have jurisdiction
if it is necessary in an interpleader action
 State Farm Fire & Casualty Co. v. Tashire (1967)
o Multi-party accident happened in CA between residents of CA, OR, IL, and Canadian
residents
o State Farm filed an interpleader action in the district court of Oregon and sought
injunction to stay all suits elsewhere and force all claimants to litigate in OR
o State Farm’s stake was only $20,000 and it filed a motion to extend the protection to
its insured
o SC decided that a party with only a $20,000 stake in a huge tort claim cannot force
parties to litigate in a single forum because it violates due process
a. Many of the claims weren’t even against State Farm and other defendants
would be dragged to an inconvenient forum to litigate
b. The district court was attempting to promote efficiency, BUT at the expense
of due process, which is NOT allowed
23
Morrison, Civil Procedure I (Fall 2013)
o § 1369 has since been enacted, which prohibits consolidation of cases, except in
special situations
o The concern of federalism is NOT very great because the number of interpleader
actions is very small
a. In fact, forcing claimants to litigate in federal court may prevent states from
infringing on each other in separate cases
IV.
Intervention
► Intervention allows an absent party to become party of the litigation if certain requirements are met
a. Intervention as of Right Under Rule 24(a)
 Rule 24(a) allows a party to intervene as of right IF a statute authorizes it and if the
following conditions are met:
o The intervener has an interest in the property or transaction that is the subject matter
of the suit
o The interest would be impaired if the party is not allowed to intervene
o The party’s interest is not adequately represented by parties already in the suit
 Rules 24(a) is NOT a guarantee to intervention because it is up to the court’s discretion if
the party attempting to intervene has NOT done so in a timely fashion OR his interests are
ALREADY adequately represented
 Atlantis Development Co. v. United States (1967)
o Gov’t brought suit against a D who was building on the Continental Shelf which the
gov’t claimed it owned based on a statute that granted them control of any land in the
continental shelf
o Atlantis was a 3rd party who claimed to own the land called “Atlantis” that it had been
developing for some time and had requested permits from the gov’t many times
o Atlantis filed a motion to intervene under Rule 24(a) because:
a. it had a definite interest in the property in question since it was alleging
ownership
b. if it was NOT allowed to intervene and the U.S. won the main case, it would
make it very difficult for Atlantis to contest that ownership in a new suit
c. Atlantis’s interests were NOT adequately represented by either of the
existing parties since everyone is fighting over who owns the property
o Atlantis did NOT file a motion to consolidate the cases because that is at the judge’s
discretion and may not be granted whereas under Rule 24(a), intervention is a right
if the 3 criteria are satisfied
o Court says that if Atlantis was NOT allowed to intervene, it would severely limit its
ability to protect its interests in the land if the trial court found for the gov’t
o Gov’t argued that Atlantis should NOT be allowed to intervene because it could NOT
win at trial on the merits
24
Morrison, Civil Procedure I (Fall 2013)
a. Court says it does NOT comport with due process not to allow a party to
assert its facts and legal basis in pleadings and deem that it could not win at
trial before allowing discovery
 Timeliness of filing a motion to intervene is also important
o The court may deny the motion if there was no good reason the party did not attempt
to intervene earlier
o However, a party may NOT know until late in the trial whether its interests are being
adequately represented
a. Parties are allowed to intervene even in the late stages of a trial if they satisfy
the elements of Rule 24(a)
b. They may be at a disadvantage in intervening late because they cannot bring
in new discovery and must rely on the facts and lower decision of the case
 Smuck v. Hobson (1969)
o Suit was brought on behalf of poor black school children with the superintendent of
the school as the representative for the Board of Education (Hansen)
a. The Board of Education lost the suit and asked Hansen not to appeal
b. Hansen and Smuck (dissenting board member) appealed anyway but then they
and 20 parents filed a motion to intervene
o It was determined that neither Smuck nor Hansen had an interest in the case and were
NOT allowed to intervene
o Parents obviously have an “interest” in their children’s education (which was
adequately represented in the trial, but no longer is since the Board of Education
voted not to appeal)
a. They have a clear interest in the case
b. They were no longer adequately represented
c. The outcome of the case would have an impact on their children’s education
and thus their interests
o The parents could NOT have brought an original suit against the Board, so not
allowing them to intervene would solidify the lower court’s decision and there would
be no appeal
o Intervention is NOT mandatory, so even if they filed the motion later, it may still be
allowed
b. Permissive Intervention Under Rule 24(b)
 Permissive intervention is completely discretionary
o The party attempting to intervene has interests that are already adequately
represented by parties in the case
o Court may allow intervention if the party brings special expertise or value to the
case
o If the request is “untimely” and would unduly prejudice the original parties,
intervention will NOT be allowed
o Courts often deny permissive intervention because the party’s interest is already
adequately represented and it does not bring anything new to the table
25
Morrison, Civil Procedure I (Fall 2013)
o Courts will grant permissive intervention for efficiency reasons if it is likely the party
will litigate a whole new case on the same transaction
o Courts may limit the abilities of the intervening party (i.e. allowing arguments but
not discovery, etc.)
 Intervention after a judgment has been made will only be allowed in limited situations
because it could prejudice the parties to the suit
V.
Procedural Defaults and Justice
a. Statute of Limitations
 Bowles v. Russell (2007)
o The district court judge gave the party 17 days to file an appeal (the law allows only
14 days)
o Party’s lawyer filed the appeal on the 17th day, before the deadline imposed by the
court expired
o SC majority determined that the district court had no authority to extend the deadline
and declined to allow the party to appeal because statutes of limitations are
“jurisdictional” and not open to interpretation
o The minority strongly disagreed and cited to a recent case in which the SC held that
the statute of limitations was not a hard and fast rule and could be changed based on
the facts of the case
a. Confusion arises because the majority and minority cite different lines of
cases for their reasoning and the majority doesn’t even discuss the recent case
that is contrary to what they are ruling now
b. This is NOT a subject matter jurisdiction question because if the appeal had
been filed 3 days earlier, the court would have had the power to hear it
c. If neither party objected to the 17 day period, and it is likely neither party was
aware of the mistake, why can’t we allow the judge’s time frame grant?
 Is the statute of limitations waivable?
o According to this recent case, the Supreme Court does not think so
o But in this case, the lower court expressly declared that the party had 17 days to file
an appeal, so why do we not allow the party to rely on that expressed allowance?
o Question turns on what exactly we expect from lawyers if they cannot rely on the
order of the judge
a. They would have to check every statement made by the judge, check the dates
on when they were filed with the clerk, etc. which is very burdensome and
implies that we cannot trust the ruling of the judge
b. Finality
 United Student Aid Funds, Inc. v. Espinosa (2010)
o Debtor and loan company agreed that the debtor’s student aid debt would be
discharged
a. No determination was made as to whether he actually qualified for this under
the “undue hardship” requirement of the bankruptcy act
26
Morrison, Civil Procedure I (Fall 2013)
o The federal court determined that it had subject matter jurisdiction and heard the
case and determined that the debtor’s “undue hardship” must be determined before a
debt may be discharged
o The loan company attempted to raise subject matter jurisdiction questions after the
case concluded
a. SC says this is NOT allowed and was not sympathetic to the loan company
because they received the debt paid by the debtor and were only complaining
about receiving notice of the appeal (but had notice of the suit, obviously)
 Subject Matter Jurisdiction (unlike personal jurisdiction) is NOT waivable
o In PJ, a person may waive the jurisdiction in the beginning, but loses the opportunity
to do so later in the suit if it is not raised immediately
o In SMJ, it may NOT be waived in the beginning and may NOT be raised after
finality
27