PERSONAL JURISDICTION (PJ) Answers the question of in what state can

sue? The test for personal jurisdiction is the same in federal court and state court. A federal court will only have jurisdiction if the state in which it sits has personal jurisdiction. A court can either have power over the or the s property to have PJ.

Specific jurisdiction is when the sues for a claim that arises in the forum. General jurisdiction is when the sues for a claim that arose anywhere.

I. IN PERSONAM JURISDICTION (power over the s person) A judgment from a court creates a personal obligation on the and entitles the to full faith and credit (FFC) in all other states. The Due Process Clause tells states how far they can go in exercising PJ. This is the outer limit and is not self-executing but states do not have to extend their reach to the full limit of the constitutional circle. A. Statutory Test. The first thing you look at when you get a PJ question is the state statute for the jurisdiction that you are in. While statutes vary from state to state, every state has statute allowing jurisdiction when: present in forum when served with process (general jurisdiction statute) domiciled within the state (general jurisdiction statute) non-resident motorist act = appoint agent for service of process and consent (specific jurisdiction statute) (Hess v. Pawloski) attachment statute for in rem/QIR

long-arm statute for non-residents 1. Full Power (CA type): the state has jurisdiction to the full extent that the Constitution allows test is same as Constitutional test 2. Laundry List: various things that can do in state that would subject him to specific jurisdiction. Classical list includes: transaction of business, commission of tortious act, matrimonial domicile within state, owns real property within state.

Interpretation of language can vary in different states. In (Gray v. American Radiator) Illinois had jurisdiction over Ohio Corp. b/c Illinois interpreted commit tortious act within state to mean tortious act occurred where is harmed (Illinois Rule). The same statute and fact pattern in NY would not grant jurisdiction b/c interpreted same language to mean tortious act occurred where product was negligently manufactured (NY Rule). (Flint v. Gust) Watch for difference between any business and substantial business in statute.

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B. Constitutional Analysis: once a state statute has been met must look to Const. 1. Traditional Basis of Jurisdiction may alone suffice to establish PJ. (a) Presence: The Supreme Court upheld PJ when the was served with process within the forum state. (Pennoyer v. Neff) Neither International Shoe nor Burnham overruled the idea that presence alone is sufficient for personal jurisdiction. The International Shoe test says If he be not present then the minimum contacts test will be applied.

Burnham was a transient jurisdiction case (obtaining jurisdiction by serving while temporarily physically present in the state) because was served process for a cause of action unrelated to his brief presence in the state. Here the court split 4-4 with one side suggesting that presence alone was enough (Scalia) and the other using minimum contacts as the definitive test (Brennan). (Burnham v. Superior Court of California) Force or Fraud exception: service of process invalid in cases where forced or tricked to enter state in order to serve process and therefore no PJ. Immunity of parties and witnesses: most states grant immunity from PJ to nonresidents who are present in the state solely to take part in a judicial proceeding or who are passing through the state on their way to a judicial proceeding elsewhere.

(b) Domicile: if domiciled within the state then there is general jurisdiction. It is still true today. (c) Consent: can waive Constitutional protection by consenting to PJ. Can do so in a state court by making a general appearance instead of a special appearance (only contest PJ). can provide express consent via contract or implied consent such as the nonresident motorist act in Hess v. Pawloski. (d) Agent appointed for service of process: can serve process on s agent if served within state. may appoint agent or s actions may by statute appoint or designate an agent for service of process. (Hess) Privileges and immunities clause protects right of interstate travel for persons but since corporations are not persons, state can exclude them from entering. States can force corporations to appoint an agent within the state as a condition for allowing the corporation in.

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2. Modern analysis-International Shoe Test: The Supreme Court in International Shoe v. Washington greatly expanded the test for PJ beyond the traditional bases. The focus became whether there were such minimum contacts with the forum so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

Two-prong test required: minimum contacts and fairness. Must have a relevant contact before looking at fairness. All the fairness in the world would not make up for no contacts.

(a) MINIMUM CONTACTS: purposeful availment and foreseeability

Purposeful availment: Court must find that the purposely availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. (Hanson v. Denckla) Unilateral act of : bringing product to forum or relocating in the forum is insufficient to establish the requisite connection. moving to FL in Hanson did not establish PJ over Delaware bank. s driving a car through OK did not establish PJ (World-Wide Volkswagen v. Woodson) Long-term relationship with forum: reached out to FL when signed 20 year franchise agreement (Burger King) Single act: single act seeking to serve the forum market suffices for specific jurisdiction such as a Texas insurer selling one policy to person in CA. (McGee) Soliciting business: (e.g. advertising in forum, 800 numbers, sell on interstate highway close to state border, etc.)

Foreseeability: Do not look to the foreseeability that product will get there but that [] should reasonably anticipate being haled into court there. (World-Wide VW) Stream of Commerce: PJ over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in that forum state (VW) There is no substantive law in this area because of a 4-4 split in Asahi. Need to address both of the following theories:

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OConnor: reasonable anticipation product could get in state and some intent or purpose to serve the state (soliciting business) is sufficient to satisfy minimum contacts Brennan: reasonable anticipation that product could get into state is sufficient for minimum contacts

Manufacturers: court upheld PJ over a component supplier whose product was sent into the forum state as part of a product manufactured by its customer (Gray v. American Radiator) Targeted effects: targeted effects at forum-> reasonably anticipate causing injury in forum-> reasonably anticipate being haled into court there. (b) FAIRNESS: the exercise of PJ must also be fair beyond merely having minimum contacts

Relatedness sliding scale between the amount of contact and the relatedness of the contact. If contacts are substantial, continuous, and systematic then dont need relatedness for gen. Juris. A higher degree of relatedness between the claim and the contacts lowers the quantity of contacts necessary to justify jurisdiction (specific jurisdiction). Many contacts will justify jurisdiction even if the claim is unrelated to the s contacts with the state (general jurisdiction). Convenience since will always claim that forum is not convenient then burden is on the to show that it is so gravely difficult that is at a severe disadvantage in the litigation (Burger King). It is such a high standard that will almost never satisfy it. States interest interest of the state in regulating the activity involved and providing a forum for its citizens when ripped off! Shared interests of several states. s interests. Interstate judicial system interest.

C. General Jurisdiction: In order to have general jurisdiction, the contacts of the with the forum must be substantial, continuous, and systematic. (Perkins v. Benguet Mining Co. and Helicopteros)

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I. IN REM AND QUASI IN REM Treat like in personam. Every state has an attachment statute. The Constitutional test is to meet minimum contacts. (Shaffer v. Heitner) If cant get in personam try one of these. Property may be tangible (real property or personal property), or intangible (bank account). A. In Rem Dispute over ownership of the property as to the entire world. This jurisdiction is limited to situations where the property is located within the physical borders of the state. Usually presence of the property alone will satisfy minimum contacts. (footnote in Shaffer) B. Quasi In Rem two types: The first one includes cases involving disputes over the ownership of the property between two or more parties. The second type involves personal disputes where the court lacks jurisdiction over the , but has jurisdiction over the property of the . The property would be seized by the and used to satisfy the claim if he prevailed. III. DIRECT/COLLATERAL ATTACK DO NOT mix the two approaches. can only challenge PJ once, either on direct or collateral attack. A. Direct Attack = goes to the forum and contests personal jurisdiction. 1. Special v. General Appearance Code states have special appearance whereby a can solely contest PJ as long as no other defenses are raised. (a) FRCP states have no such thing as a special appearance because all grounds of defense including lack of PJ can be asserted in a motion or answer under Rule 12(b). If raises other defenses, it becomes a general appearance and has consented to PJ. (a) Once a makes a general appearance, he cannot later object to jurisdiction. (Baldwin v. Iowa State Traveling Mens Association) (b) Under FRCP Rule 12(h)(1), waives PJ if it is not contested in either the answer or the first motion filed. 2. Advantages of a direct attack: If client prevails and court has no PJ, then case immediately dismissed. If s case is strong on the merits, should use direct attack.(wouldnt risk losing on issue of PJ on collateral attack because at that point judgment is already entered, and merits hold no weight) 3. Disadvantages of direct attack: May be expensive to travel and stay in a distant forum. May have to hire new attorney to appear in the forum who must quickly be familiarized with the case because of the time limits imposed on defensive responses.

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Absent special exception for appeal of PJ, traditional rule only allows appeal on the issue of PJ after litigation of case on the merits. Thus, rejection of PJ attack may require to stay for trial.

B. Collateral Attack = allows a default judgment to be entered and then contests PJ when comes to claim full faith and credit (FFC) on the judgment. 1. Advantages of collateral attack: would litigate at home (save travel expenses). If s case is weak on the merits, would be better to save $ and try to win on issue of PJ. 2. Disadvantages of collateral attack: Because a can enforce judgment anywhere has property, may still have to raise collateral attack in a distant forum. Permits to raise only issue of PJ (cannot contest merits of claim).

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NOTICE AND OPPORTUNITY TO BE HEARD - Due process requires to be

given notice and opportunity to be heard: notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections (Mullane v. Central Hanover Bank & Trust Co.) Satisfying the requirements in Rule 4 is usually enough to satisfy this Constitutional requirement. I. SERVICE OF PROCESS: governed by Federal Rule 4. Service is only good in the state where the court sits, courts can only serve process outside of state lines if state law allows A. What is served? Process = summon (formal court notice) plus copy of complaint B. Who serves? Any non-party at least 18 years of age. C. How do you serve? Rule 4(d): may request by mail that waive service of process according to 4(d) specifics. Waiving service does not waive PJ. If wont waive, then there are methods for service:

Personal service can hand to personally or close to them (within state or outside of state if state law allows) Rule 4(e)(2) Substituted service okay if service is left at s dwelling house or usual place of abode and with someone of suitable age and discretion residing therein (Khashoggi) Rule 4(e)(2) Service of agent agent can be appointed by contract or by operation of law. Rule 4(h) says can only serve corporations by serving an agent of such corporation. Service by Publication only acceptable if there is no other reasonable means of notice; last resort. Under State laws Rule 4(e)(1) says that any method provided by state law in state where federal court sits or law of state in which was served may be adequate for service of process. (*look to state long-arm statutes) Time Limit for Service Rule 4(m) have 120 days after filing of complaint to serve; doesnt apply for service in foreign country Exceptions 1. Bulge Rule Rule 4(k)(1)(b) service within 100 miles of courthouse though out of state (but still in US) only applies to parties joined later as necessary parties 2. Statutory Interpleader Rule 4(k)(1)(c)

II.

OPPORTUNITY TO BE HEARD: Everyone is entitled to their day in court. (Freer)

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SUBJECT MATTER JURISDICTION (SMJ)

A federal court can hear only certain kinds of cases: Diversity of citizenship or federal question. Article III of the Constitution defines the scope of federal courts in 2 paragraph 1. These are the outer limits of federal subject matter jurisdiction. The USSC has original jurisdiction over cases involving ambassadors, public ministers, and when a state is a party. All other times the Supreme Court has appellate jurisdiction (Article III, section 2, paragraph 2) SMJ is not waivable, but PJ is a waivable defense. The only time in which the federal and state courts do not have concurrent SMJ is when there is a federal question involved providing SMJ to federal system. SMJ answers the question: Which system can you bring suit in (State or Federal)? 1. DIVERSITY OF CITIZENSHIP [1332 (a)(1)] and Alienage [1332 (a)(2)]: Two requirements case must be between citizens of different states (or between a US citizen and a subject of a foreign state) with the amount in controversy exceeding $75,000. 1. Who are citizens of different states? 1. Complete Diversity Rule (Strawbridge v. Curtis) No diversity if any is a citizen of the same state as any (draw line in between and sides to check). Must have complete diversity at the time the case is filed (doesnt matter if the parties move after case is filed makes no difference for diversity purposes). A U.S. Citizen living abroad may never sue/be sued in federal court because has no domicile for a diversity claim and is not an alien. 2. What is citizenship? (a) Natural persons: two requirements to determine citizenship [1332 (a)(1)] Must be a citizen of the U.S. Domicile (two determining factors-can only have one domicile at a time) must be present must have the intent to make it your permanent home (no single factor is determinative of intent) a child goes with parents domicile until affirmatively changes or old enough to have requisite intent (E.g. parents move when child 17 years old, does not necessarily have to change with parents but may keep previous domicile-subjective test depends on factors) (b) Corporations [1332 (c)(1)] Corporations are citizens of all states where they are incorporated and in the one state where they have their principle place of business (PPB). Principle Place of Business (PPB) Total Activity Test look at nerve center and muscle center (if they are in different states) to determine which is the PPB.

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1) If a corporations operations are far flung, the sole nerve center is more significant in determining the PPB. 2) If a corp. has its sole operation in one state and headquarters in another, the muscle center is regarded as more significant. Nerve Center where corporate decisions are made or location of corporate headquarters Muscle Center where corporation does most of it business or manufacturing activities

(c) Unincorporated Associations/ Partnerships (e.g. Labor unions, no statute) Citizenship = that of each and every one if its members/partners (d) Representatives [1332 (c)(2)] When a party lacks capacity (minors, incompetents, decedents-because they have changed their venue) they need to have a representative because they cant litigate on own. Look to citizenship of represented person not of the representative. This differs from class action where the citizenship is that of the representative of the class. (e) Assignment of claims [1359] Can only assign claim for adequate consideration. There is no collusion for an absolute assignment of claim where the assignor retains no interest in the claim. When there is collusion, a court will look to the citizenship of the assignor of the claim not the assignee. B. Amount in Controversy [1332 (a)(1)] - s claim for recovery must exceed $75K not counting interest and costs. There must be a legally tenable possibility that recovery will exceed $75K (good faith), even though final judgment does not have to exceed $75K. Three reasons why s claim may not be good faith: 1. Legal limit. (statute says cannot get over $75K based on claim) 2. Remedy is inappropriate. (e.g. punitive damages in a contract case) 3. s claim not deserving of more than $75K.

Aggregation of Claims (adding up two or more claims to get over $75K) 1. Can aggregate claims if one against one . 2. No aggregation with multiple parties unless: joint claim by s against one (e.g. joint owners of real estate sue to get quiet title) or one asserts claim against several s who are jointly liable Equitable Relief Court will uphold jurisdiction if harm to is enough, or cost to is enough with respect to amount in controversy.

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II. FEDERAL QUESTION (FQ) [1331] The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. The federal courts have exclusive jurisdiction over areas including patent infringement, bankruptcy, civil rights, antitrust and others as provided in 13331351. There is no amount in controversy requirement and the citizenship of the parties does not matter in an FQ case. In a FQ case, must only satisfy PJ under minimum contacts (Constitutional test), even if state has a more restrictive long arm. A. Well-Pleaded Complaint Rule Federal question must appear as part of s complaint. Basis of claim itself must arise under federal law. Is the vindicating a federal right? Content of the s answer is not relevant, even if an issue of federal law is asserted as an affirmative defense. (Louisville & Nashville Railroad Co. v. Mottley) III. SUPPLEMENTAL JURISDICTION [1367] If the original basis of the claim invokes federal SMJ, then the federal courts have the discretion to exercise supplemental jurisdiction over state law claims that may not have an independent basis for SMJ, as long as the state claim and original claim constitute part of the same case or controversy. IV. REMOVAL [1441, 1446, 1447] Gives a say in whether a case will proceed in state or federal court. Removal is simply a transfer to a different court, but never call it a transfer! Permits to remove a case from state court to federal court. A. General Rules: 1. It is a one way street (you remand back to state court, you do not remove back to state court). 2. cannot remove in any circumstance. Even when there is a counterclaim does not become like for purposes of removal. 3. All served s must agree to remove a case. s served later can move to remand because they did not agree to the removal. 1441(b) 4. Can remove only to the federal district that geographically encompasses the state court where original case was filed.

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5. Removing a case does not waive 12(b)(2-5) motions. 6. A federal court must have SMJ in order for a case to be removable. If one claim is an FQ then may remove entire case even if other claims do not have SMJ. Two exceptions to allowing removal in a diversity case (do not apply to FQ case): (a) If a diversity case (not FQ), then no removal if any is a citizen of the forum = In State Rule (**Beware** unclear whether in state rule applies to cases that are not solely diversity cases; e.g. hybrid cases involving both FQ and diversity/alienage) (b) No removal more than one year after case was filed in a diversity case. B. Procedure for Removal [1446] 1. must file in the district court a notice of removal pursuant to FRCP Rule 11 containing: a short and plain statement of grounds for removal, and a copy of all process, pleadings, and orders that have been served on . 2. Notice of removal shall be filed within 30 days after receipt of complaint by , or within 30 days after service of summons on if initial pleading did not have to be served on , whichever period is shorter. 3. If the original complaint was not removable, then may file within 30 days after case becomes removable (by an amended complaint or otherwise), as long as it has not been more than one year from commencement of the action. 4. must give written notice to all adverse parties and state court clerk, effecting removal and ending state courts handling of case until case is remanded C. One Strike Rule the first that could have removed better have because subsequent s added past 30 day period cannot remove (Noble v. Bradford Marine, Inc.) D. Procedure After Removal [1447] 1. must file motion to remand within 30 days after notice of removal [1446(a)] was filed by , except when court lacks SMJ. The 30 day requirement does not apply to SMJ since if at any time the federal court lacks SMJ, case must be remanded. 2. Federal court has option of allowing joinder of additional s that would destroy SMJ and then remand the case to state level, or deny joinder and keep case as is.

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VENUE [1391]

Venue tells which federal district you can sue in (geographic question). No Constitutional right to venue. All determined by statute/legislation. Improper venue may be waived. I. BASIC RULES A. Local Actions [1391 does not apply] = ones involving real property (e.g. land) RULE: lay venue where land lies Real property as basis of jurisdiction (in rem, QIR) Remedy in realty Damages for injury to land (trespass) B. Transitory Actions [1391] = all other actions Rules same for diversity and FQ cases. can lay venue in: 1. Any district where any resides, if all s reside in the same state. [1391(a, b)(1)] (a) If s reside in different districts of the same state, then can lay venue in district in which any one of the s reside. (b) reside (for natural persons) = domicile (c) reside (for corporations) [1391(c)] = all districts where subject to PJ at time action is commenced. Rule does not specify whether PJ met by state statute or minimum contacts, thus must argue either way. In multidistrict state, reside in any district where contacts sufficient for PJ exist. If no contacts sufficient for PJ, reside in district where most significant contact. (d) reside for unincorporated associations is where it does business. 2. Any district where a substantial part of the events or omissions giving rise to the claim occurred. [1391(a, b)(2)] May be more than one district. 3. Any district in which any is subject to PJ at time action is commenced [1391(a)(3) = diversity cases] or where any may be found [1391(b)(3) = non-diversity cases], if there is no district anywhere in the U.S. which satisfies (1) or (2). (Very Rare) E.g. If a claim arose outside the U.S. against a not residing in U.S.

Alienage cases: An alien may be sued in any district that has personal jurisdiction [1391(d)]. Same rule applies for permanent residents, even though they possess state citizenship for 1332 purposes.
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II. TRANSFER (CHANGE OF VENUE) Intra-system transfer: can transfer across state lines only in federal court Can only transfer from one federal court to another federal court. Either a or can transfer a case.

Rules for transfer: A. Can only transfer to a court that is proper venue and has PJ without waivers by . (Hoffman where action might have been brought) B. Transfer when original court was a proper venue [1404(a)] = 1404 Transfer 1. Every transfer of a case removed from state court must be a 1404 transfer and cannot be a 1406 transfer. WHY? The Stein Answer: 1391 does not apply to removed cases because venue is proper in the district that encompasses the state court, thus that district court will always be proper venue. 2. GOLDLAWR where transferor court lacks PJ (is Constitutional to transfer, lack of PJ does not affect power to transfer a case) E.g. Amanda is sued in state court where there is no PJ but yes SMJ, thus remove case to federal court on basis of diversity. Venue is proper, however still no PJ = 1404 Goldlawr so case can be heard. Van Dusen does not apply under a Goldlawr transfer because cannot capture choice of law rules from a court that lacks PJ. 3. VAN DUSEN - Under a 1404 (except a Goldlawr transfer), transferee court must apply the choice of law rules of the original court. Each state can create its own choice of law rules to dictate which states law will apply. If case were not transferred, the district court will apply the choice of law rules of the state in which it sits. 4. Note: Court has discretion over whether it will transfer based on convenience of the parties and witnesses and in the interests of justice (look for center of gravity e.g. place that is substantially better). C. Transfer when original court was an improper venue [1406(a)] = 1406 Transfer Court can either transfer or dismiss. Under a 1406, Van Dusen does not apply because cannot capture choice of law rules from an improper venue court. 1406 Goldlawr is possible when a court has improper venue and lacks PJ. Court still has power to transfer in this situation.

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D. Multi-District Litigation [1407] In mass torts where many cases are pending in different districts, all such cases may be transferred to one district and consolidated for pre-trial proceedings. Following pre-trial crap, cases shall be remanded, yet not uncommon for such cases to be tried together. Transfers need not meet other venue requirements. Decision to allow such transfers made by judicial panel on multi-district litigation. III. FORUM NON CONVENIENS When a proper court dismisses a case because there is a better court. FNC is raised by motion of . Why not transfer? Because FNC only applies when cant transfer because the better court is in another system. (E.g. different state or foreign country) A FNC dismissal may be conditioned on the waiving certain defenses such as statute of limitations or PJ. At the outset of FNC inquiry, court must determine if alternative forum exists.

PIPER AIRCRAFT dismissal was appropriate where forum chose imposed a heavy burden on or the court, and where the cannot offer any specific reasons of convenience supporting his choice. Relevant factors considered are private and public factors. These factors must make a strong showing because result is a dismissal of the case. A. Private Factors (convenience of litigants) 1. Accessibility to sources of proof (witnesses, evidence). 2. Costs of bringing willing witnesses and availability to subpoena unwilling witnesses. 3. Possibility of view of premises (if appropriate). 4. Other practical problems that make case easy, cheaper, and quicker. B. Public Interest Factors (convenience of forum) 1. Administrative difficulty because of court congestion. 2. Local interest in deciding local controversies at home. 3. Trial of diversity case in forum of the home of the governing law. 4. Avoid unnecessary problems in conflict of laws (or application of foreign law). 5. Unfairness of burdening citizens with jury duty in forum unrelated to dispute.

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PLEADINGS
I. HISTORY A. Common Law Pleading Writ system required invoking writ for particular claim of action. Primary method for putting s on notice and factual development. B. Code Pleading Pleadings simplified to give notice and facilitate decision on merits. Fact development shifted to liberalized discovery process. Emphasized pleading facts a statement of the facts constituting the cause of action, in ordinary and concise language. Requires more detailed allegations. C. Federal Rules (FRCP) Pleadings function to give notice and provide mechanism to test legal sufficiency of a claim (same as Code). Do not require as much factual detail in pleading short and plain statement of the claim showing that the pleader is entitled to relief. General purpose is to put on notice. II. PLEADINGS ALLOWED RULE 7(A) Complaint () Answer () Court-ordered Reply to an answer or motion or answer to a counterclaim. A. Form of Pleadings Rule 10 1. Caption Name of court Title of action/Name of parties Designation as in 7(a)[E.g. complaint, answer, reply to counterclaim, etc] File number [CV(civil)-97 (year)-00001 (#)-S (judge)] 2. All averments/assertions (claims or defenses) made in separate numbered paragraphs, claims based on separate transactions set forth in different counts Rule 10(b) Each shall be simple, concise, and direct Rule 8(e) Parties required act in good faith by alleging matters only supported by evidence Rule 11(b) 3. Parties allowed to adopt by reference allegations found elsewhere in document rather than restating, and make attached written documents part of pleading Rule 10(c)

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4. Inconsistent pleadings: can plead statements in the alternative (contradictory) in claim, yet if plead in alternative in separate cases, allegations in one case can be used as judicial admissions against in other case Rule 8(e)(2) & McCormick B. Complaint Rule 8(a) Most Code and FRCP provisions governing complaints are substantially similar 1. Short and plain statement asserting ground for courts jurisdiction Must allege SMJ for federal courts (dont need to assert PJ) Many states require showing that trial court selected was proper Some states require allege PJ and proper venue if is nonresident 2. Short and plain statement of claim for relief Must be legally and factually sufficient to support a judgment for (a) Code states: statement of facts constituting a cause of action, in ordinary and concise language, w/o repetition. facts = ultimate facts, which courts have difficulty defining. (i) allege facts too specifically = pleading the evidence (ii) allege facts too generally = pleading conclusions of law for both, court will sustain s challenge (special demurrer) (b) FRCP states: avoids term facts. (i) does not require stating with particularity except: Rule 9(b) - cases of fraud or mistake Rule 9(g) claims for special damages (damages that dont flow naturally from an event) 3. Demand for judgment Demand does not limit s recovery, can get whatever proves at trial Generally pleaded as lump sum, certain kinds need plead with particularity (e.g. special damages, equitable relief) can state specific dollar amount or damages in an amount to be shown at trial C. Defensive Response Rule 12 Timing (for both answer and motion): must be served within 20 days after being served with process Rule 12(a) (1)(A) * if is United States, it has 60 days to do so * - Rule 12(a)(3) if service waived, must be served within 60 days from when request waiver sent - Rule 12(a)(1)(B)

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1. ANSWER - must respond to allegations of complaint and raise affirmative defenses (a) Respond to allegations of complaint i. Admissions Rule 11 acting in good faith also required for answers Must admit alleged facts that are true so that undisputed facts are not at issue in trial. ii. Denials 2 types: (A) General denial short pleading denying all allegations in complaint (B) Specific denial used to deny allegations in specific paragraphs of complaint (e.g. Qualified general denial admit 5 and deny all of the rest.) If dont deny particular allegation, treated as admitted fact Make denials simple and direct deny allegations in 4 -- Argumentative denial introduces new facts as means of denying allegations, may be confusing or not seen as effective denial -- Negative pregnant is too literal denial, may be seen as admitting some of facts alleged iii. Lack of Knowledge (dont know) Can state lack knowledge, has effect of a denial Cannot use if access to info or is general knowledge

(b) Raise affirmative defenses Differ from denials in that they inject new matter into dispute Elements of a claim: ifs are for s claim, unlesses are afrm. defenses If fail to raise affirmative defense in answer, omitted defense is waived (may amend) Burden of pleading issue followed by burden of proving issue at trial. 2 exceptions: defamation and repayment (both and must plead, burden on to prove) 2. MOTIONS (not a pleading) request to the court by (a) General Rules of Motions Motion serves two functions: tests legal and factual sufficiency of complaint If a motion is denied, has 10 days to file an answer. may bring motions for relief other than dismissal 1. Motion for more definite statement [or unintelligibility] (only raises, very rare); applies to pleadings to which a responsive pleading

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is permitted - not a reply b/c a reply is only to a counterclaim; Rule 12(e) 2. Motion to strike (either or can raise, more common) Rule 12(f) (b) Rule 12(b) Motions for Dismissal All affirmative defenses must be in an answer, except any of the 12(b) defenses which may be made by motion or asserted in the answer. Must make 12(b) motion before responsive pleading. (E.g. an answer) No defenses are waived merely because they are joined with others in a motion or answer. (This is the reasoning for why there is no special appearance under FRCP) If 12(b)(2-5) defenses not raised in 1st motion, then cannot raise in subsequent motion because they have been waived by Rule 12(g)/12(h)(1) (A). Also, cannot be raised in subsequent answer because waived by Rule 12(h)(1)(B). Rule 12(b) Motions Timing under 12(h) 12(b)(1) Subject Matter Jurisdiction May be made at any time ever. 12(b)(2) Personal Jurisdiction In 1st Response, or else waived. 12(b)(3) Improper Venue In 1st Response, or else waived. 12(b)(4) Insufficient Process In 1st Response, or else waived. 12(b)(5) Insufficient Service of Process In 1st Response, or else waived. 12(b)(6) Failure to State a Claim May be made up until end of trial. 12(b)(7) Failure to Join an Indispensable Party May be made up until end of trial.

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III. DISMISSAL RULE 41 Without prejudice = Claim can be re-filed. With prejudice = Claim cannot be re-filed because the dismissal is equivalent to adjudication on the merits. A. Voluntary Dismissal 2 ways a can dismiss without order of the court (notice of dismissal or stipulation of the parties) 1. may file a notice of dismissal without order of the court, and without prejudice, at any time before serves (filed does not = served) an answer or serves a motion for summary judgment (Rule 56). No other motion will suffice. However, the second time a files a notice of dismissal based on or including the same claim in any federal or state court that had once been dismissed, it operates as an adjudication on the merits and is dismissed with prejudice. Rule 41(a)(1)(i) 2. may file a stipulation of dismissal signed by all the parties without order of the court (and without prejudice). Rule 41(a)(1)(ii). If files a stipulation after once filing either a notice of dismissal or a stipulation, still without prejudice. 3. Court may order dismissal by terms and conditions as the court deems proper if no dismissal by 41(a)(1)(i) or 41(a)(1)(ii). This is without prejudice unless otherwise specified. Court will not grant dismissal if pleads a counterclaim before served with motion to dismiss, unless counterclaim is sufficient for independent adjudication. B. Involuntary Dismissal Rule 41(b) 4 ways to for to dismiss; 1. Failure of the to prosecute. 2. Failure of to comply with FRCP. 3. Failure of to comply with court order. 4. Any dismissal not provided for in this rule. [E.g. 12(b) motions]

Unless court order specifies otherwise, an involuntary dismissal is with prejudice unless dismissed for lack of jurisdiction [12(b)(1&2)], improper venue [12(b)(3)], or failure to join a party [12(b)(7)] under Rule 19. Rule 83 allows district courts to adopt local rules as long as they dont conflict with FRCP. Court issues order to to show cause why not to dismiss (OSC) when court has found that has taken no action in specified period of time. Or in state practice Rule Nisi (Nigh-sigh). In Link, court dismissed case without warning s counsel of dismissal for failure to prosecute. However, now

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required notice and opportunity to be heard before sanctions can be imposed. Rule 11(c).

IV. DEFAULT & DEFAULT JUDGMENT A. Default Rule 55(a) 1. gets notation on docket sheet by clerk that failed to respond within 20 days can file a motion or answer at any time before the default is entered on the docket sheet. should make motion for enlargement of time in which to respond if going to file a late response (no one really follows this rule because technically has right to be late if no default is on the books. Rule 6(b) 2. cannot obtain any $ or relief on default. 3. can obtain default by presenting federal court clerk with affadavit or otherwise showing failed to plead or otherwise defend w/in 20 days, clerk must enter the default. (Affidavit = sworn statement under penalty of perjury) 4. What can do if default has already been entered? Rule 55(c) provides that can make motion to the court to set aside the default if can show good cause. Excusable neglect qualifies as good cause. B. Default Judgment Rule 55(b) 1. Judgment by the Clerk - Rule 55(b)(1) (a) Four things needed for clerk to enter default judgment: 1. Case involves a sum certain or easily calculable amount. Only look at claim, doesnt matter if court costs unknown until end of proceedings. 2. failed to appear if no answer, never appeared 3. not an infant or incompetent 4. must file affidavit saying that sum certain is due (b) If all four satisfied, default judgment must be entered for that amount stated in affidavit (prayed for), plus costs. (c) Can obtain this judgment immediately after getting default under Rule 55(a) if have two copies of affidavit. 2. Judgment by the Court Rule 55(b)(2) must do this in all cases that dont qualify for clerk judgment (a) Apply to court for default judgment (must be in writing).

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(b) Court will then have a hearing. (c) Court considers numerous factors in awarding default judgment: 1. s failure to plead is merely technical. 2. Possibility of prejudice to . 3. Default is de minimus (merit of s substantive complaint). 4. Sufficiency of the complaint. 5. Sum of $ at stake in the action. 6. Possibility of dispute concerning material facts. 7. Whether default was due to excusable neglect. 8. The strong policy underlying the federal rules favoring decision on the merits. (d) If court decides to issue default judgment, hearing focuses on determining damages amount to be rewarded. 3. If amount prayed for an unspecified amount, Rule 55(b)(2) enables the court to conduct hearings and determine the amount of damages the is entitled to. Rule 54(c) does not apply.

If sought a specified amount but couldnt go to clerk for default judgment because other factors required were not present, then Rule 54(c) applies and says that can only receive amount prayed for or less (left up to court). If seeking default judgment against who has appeared, must be served with notice of application for judgment at least 3 days before the hearing.

4. What can do if default judgment has already been entered? Rule 60(b) Court may excuse from judgment for such factors: (a) Mistake, excusable neglect often used by s yet court usually insists on a viable defense in addition to good cause (b) Newly discovered evidence (c) Fraud (d) Judgment is void. (E.g. no SMJ or PJ) (e) Judgment no longer equitable. (f) Any other reason. Cannot raise (a), (b), or (c) later than one year after default judgment entered.

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V.

AMENDED PLEADINGS A. Amendments Allowed - Rule 15(a) 1. has absolute right to amend once before serves answer (no day limitation). 2. has absolute right to amend answer once within 20 days after answer initially served so long as responsive pleading is not permitted and action has not been placed on trial calendar. 3. General amendment provision allowing for amendment with court permission or stipulation of parties. (a) Parties must make a motion to amend in this situation. (b) Shall be given freely when justice so requires. (c) Court looks at factors when making decision: delay and prejudice. (d) Construed liberally because courts like deciding on merits not technicalities. 4. Parties must respond to amended pleading under time required in (a) or (b), whichever is a longer period of time: (a) Within 10 days of being served with amended pleading, or (b) Within time remaining for response to original pleading B. Variance - Rule 15(b) = when evidence at trial does not match evidence presented in pleadings (either party can object). In code states variance can be a problem, but not fatal under FRCP. 1. Amendments to Conform to the Evidence (a) When a party does not object to a variance, evidence comes in and is treated as if the issue had been raised by pleading because that party impliedly or expressly consented to it by not objecting. (b) Party may then make a motion to amend pleading to match evidence admitted in trial, but this is not required. (c) Amendments to conform to evidence must be made by motion by any party at anytime, even after judgment. 2. Motion to Amend (a) At trial 15(a) 2nd sentence shall be freely given when justice so requires does not apply during trial. Instead, the court may freely allow

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the pleadings to be amended when the presentation of the merits of the case will be subserved. (b) Court will grant amendment if satisfies (a) unless objecting party shows that allowing amendment would prejudice them. In that situation, the court may grant a continuance to enable party to meet such evidence and therefore not be prejudiced. C. Relation Back of Amendments Rule 15(c) = amending after the statute of limitations has run. The amended pleading is treated as though it was filed when the original was filed when: 1. It is permitted by the law that provides the statute of limitations applicable to the action (Rule 15(c)(1)), or 2. The claim or defense asserted in the amended pleading arose out of the issue raised in the original pleading (Rule 15(c)(2)), or 3. The amended pleading changes the party against whom the claim is asserted if 15(c)(2) is satisfied, and service is within the period of time provided in Rule 4(m) [120 days] (Rule 15(c)(3)), and (a) The new party has received notice of the action. (b) The new party knew that if but for a mistake in the original complaint they would have been named in the action. D. Supplemental Pleadings Rule 15(d) Updates dispute by allowing new facts occurring after original pleading filed to be brought to attention of the court. Does not include facts that occurred before original pleading filed, yet not discovered until after filing. Allowed even if they change the relief sought or add additional parties. Allowed only by court permission and courts grant leave to supplement upon reasonable notice, upon terms that are just, and so long as it does not create undue delay, prejudice, or bad faith.

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VI. SELF-POLICING FOR LAWYERS Rule 11 A. Signature 11(a) 1. Signature required on the pleading, motion or any other written document) by attorney or pro se litigant 2. Signature means that document does not need to be accompanied by an affidavit 3. If document is not signed, it can be stricken unless omission is corrected promptly B. Representations to Court 11(b) presenting document to the court is ongoing certification that reasonable inquiry will be made into the truth as to: 1. Document not presented for any improper purpose. (b)(1) 2. Legal contentions are warranted and not frivolous; sanctions are against the attorney not the represented party. (b)(2) 3. Factual contentions supported in evidence or will be supported in evidence after further discovery (for plaintiffs and defendants when they raise affirmative defenses). (b)(3) 4. Denials of factual contentions supported by evidence (for defendants). (b)(4) C. Sanctions Rule 11(c) Discretionary by the courts Can be brought against lawyers, parties, or firms 1. Sanctions served by motion by mail not filed with court; offending party has 21 days to fix claim if they dont, file the motion (safe harbor). 11(c)(1)(A) 2. Sanctions raised sua sponte with order to show cause. 11(c)(1) (B) 3. Sanctions to deter repeat offenses; monetary punishment may be used but not preferred. 11(c)(2) 4. Monetary sanctions not awarded sua sponte unless court issued order to show cause (OSC) before voluntary dismissal or settlement against sanctioned party. 11(c)(2)(B)

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