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4. Domicile
- Where party intends to stay, agrees to laws of state in which they
reside
a. Contractual Relationships
b.Stream of commerce-
-personal jur. over corp. that “delivers products into stream of commerce with
expectation they will be purchased by consumers in forum state”- WW
Volkswagen- However court went other way on this issue in Ashai Metal so this
issue remains unclear (lower courts seem to favor oconners opinion in ashai)
-oconner standard- defendant must have intended for its product to be
marketed in the forum state in order to satisfy the purposeful availment
requirement
- brennan standard- the defendant merely must have been aware that its
product would be marketed in the forum state in order to satisfy the purposeful
availment requirement
c. - Calder “effects” test -Intentional wrongful conduct that has effects in state-
sufficient for personal jur. (calder v. jones-defemation claim but has been applied
to other intentional torts) -“directed” at forum state is kind of a forseeability
argument- you would argue that the harm was foreseeable therefore it was
“targeted”
2. Reasonableness-
-once it is determined minimum contacts exist must determine whether assertion
of PJ would be reasonable (whether assertion of jurisdiction comports with fair
play and substantial justice)
-Justice brennan has suggested IS test is sliding scale- more substantial
minimum contacts make up for lesser showing of reasonableness prong
Five Factor Analysis- (Gestalt Factors) - first three are more significant
and Court not really clear how to apply last 2 (Burger King v. Rudezewicz)
1. The burden on the defendant
2. the forum states interest in adjudicating the dispute
3. plantiffs interest in obtaining convenient and effective
relief
4. interstate judicial systems interest in obtaining the most
efficient resolution of controversies
5. shared interest of the several states in furthering
fundamental substantive social policies
Inconvenience Argument: Δ must show that the forum is so gravely inconvenient that
Δ is at a severe disadvantage in litigation.
4. Diversity Jurisdiction
governed by 28 U.S.C. § 1332
Two requirements-
- litigation between citizens of different states (or between a citizen of a
state and an alien
- amount in controversy must be more than 75k
B. Amount in Controversy
Joint and several liability-
At times multiple defednats may combine to cause a single injury
-under these circumstances amount in controversy is satisfied as to the claims
against all defendants because under the substantive law either can be held liable for the
entire injury
Subsequent events versus subsequent revelations: Subsequent events that alter the
amount in controversy will not affect a court’s subject matter jurisdiction as long as the
jurisdictional minimum was met at the time suit was filed. These events include
abandonment/dismissal of some of plaintiff’s claims or defendant’s payment of portion of
plaintiff’s demands. Subsequent revelations as to what the amount in controversy was
when suit was commenced will affect the court’s jurisdiction if they establish plaintiff’s
lack of good faith.
Aggregation of Claims
- Π can aggregate all of his claims, even if the claims are unrelated
- Aggregation is normally only allowed for one Π against one Δ
o If more than one Π, each Π must individually satisfy the amount
requirement
o If more than one Δ, Π must establish amount requirement as to each Δ
Tests-
1. Holmes Creation Test- cause of action created by fed. law- under
inclusive
2.Well pleaded complaint rule- Louisville and Nashville Railroad v.
Mottley – fed question must appear in well pleaded complaint- fed. Questions that
appear in answer or may be used as defense will not suffice
3. Federal IngredientTest- Smith v. Kansas City - Turns on construction of
federal law
.4. Merrel Dow v. Thompson- Implies that unless fed. Question is
substantial fed. Courts should decline to exercise jurisdiction (may be
proper if sub. Fed. Question)
5. Grable Test (Substantial Federal Issue)- Grable & Sons Metal
Products v. Darue Engineering
-Is there a contested federal issue (disputed)?
-Is it substantial?
-is it necessary to resolution of claim?
-If all these are met must decide of it will disturb
balance between federal and state courts – (don’t want to
flood federal courts)
5. Supplemental Jurisdiction
definition- Ability of the federal court to hear additional claims and parties,
where the court would otherwise lack SMJ over those claims and parties independently.
- 1367 (a): incorporates Gibb’s recognition that a federal court’s ability to hear
claims over which there is no independent basis of jurisdiction is limited to claims
that are party of the same constitutional case; “common nucleus of operative fact”
Some courts give it broad reading, as long as there is a loose factual connection
6. Removal Jurisdiction
definition- allows a defendant to shift a case from state court to federal court when
plaintiff has chosen to sue in state court (1441(a))
Rules of Removal:
1. One way street: only from state court to federal court
2. Only Δs can remove – Π can never remove a case
3. All Δs must agree to removal (see McCurtain County Production Corp. v. Cowett)
4. Can only remove to federal court that embraces the state court where suit was
filed
5. Removal must occur within 30 days of service
6. Can only remove if case has federal subject matter jurisdiction
Notes:
- A defendant who removes a case to federal court does not thereby waive an
objection under Rule 12(b)(2) to lack of personal jurisdiction.
- When a case is removed, the federal court must immediately determine whether
or not it has subject matter jurisdiction. Section 1447 (c) provides that if at any
time therefore but before final judgment, the court concludes that it lacks subject
matter jurisdiction, the case should be remanded.
Fallback Provisions- if neither of these tests can be satisfied and give you proper venue
then venue approp. As determined by fallbacks
Diversity only actions- venue is proper wherever any defendant can be subject to
personal jurisdiction (1391(a)(3))
Non diversity cases- venue is proper simply in any district where the defendant
“may be found” (1391(b)(3))
In order to obtain dismissal on forum non conveniens grounds two Factors must be
satisfied—
1. Must be an adequate alternative forum available for case-
- applicability of less favorable law will not undermine status of an
alternate forum as adequate (Piper Aircraft Co. v. Reyno)
2. Must be a showing that interests of convenience to the parties and certain
public interests argue in favor of alternative forum notwithstanding plantiffs choice of
current forum (Gulf Oil Corp v. Gilbert)
Note: Most courts have found that an alternate forum is adequate so long as it provides
some remedy for the plaintiff; unless the foreign forum provides no remedy at all, it is
unlikely that a federal court will find the alternative forum unavailable.
Important Note: usually substantial weight is given to plantiffs choice of forum (where
venue and jurisdiction are proper). However, when plantiff is foreign that deference is
not warranted (Piper Aircraft).
Amendments
-
-F.R.C.P. 15: Allows party to amend a complaint to conform to the evidence,
even after judgment is entered!
-Situations in which the court may decide not to permit proposed amendment
1. When allowing would unfairly predjudice adverse party
-example- if amendment is being made at time when adverse party
would not be able to prepare adequate response
2. Party seeking amendment was previously aware of the information forming
the basis for the amendment or failed to become aware of such info due to lack of
diligence
-party doesn’t have unreasonable duty but rather if an ordinary and
expected investigation would have revealed info more recently discovered makes
argument in favor of permitting amendment less strong when balanced w/ the
burden placed on the other party
-Remedies for Δ Opposing a Complaint that Fails to State a Claim under Rule 8:
1. Do nothing, ignore the defect
2. Move to dismiss for failure to conform to Rule 8(a)(2)
But court will typically grant Π leave to amend complaint under
Rule 15(a)
3. If complaint is vague/ambiguous, Δ can move for a more definite
statement under Rule 12(e)
10. Discovery
Limits to Scope-
courts have discretion to broaden or limit scope discovery as provided by the rules
-Rule 26- must limit if court makes any of following
determinations-
1.discovery sought is unreasonably cumulative or
duplicative
2. discovery sought is more easily obtained from other
source that is more convenient, less burdensome, or less expensive
3. the party seeking discovery has had ample
opportunity from discovery to obtain the information sought
-4. the burden or expense of the proposed discovery
outweighs its likely benefit -taking into account-
a. needs of case
b. amount in controversy
c. parties resources
d. importance of issues at stake
e. importance of proposed discovery in resolving
the issues
5. can also limit for other reasons such as to protect
privacy or to prevent harassment of undue delay
3 Essential Components:
1. Discovery Relevance
A matter is “relevant” if it is “reasonably calculated to lead to
discovery of admis. evidence”
Disc. is allowed if there is any possibility that the info will lead
to admis. evidence at trial
Idea: the liberal disclosure of info will lead to a more just
adjudication of the case
2. Standard for Attorney-Managed Discovery = Relevance to a claim
or defense
More narrow/strict standard for discovery: discovery is only of
info relevant to the claim
Claim = group of facts relating to the same transaction or
occurrence, and giving rise to one or more rights of action
3. Standard for Judicially Supervised Discovery = Subject matter
standard
More lax standard for discovery: info has to be relevant to the
subject matter of the dispute
This standard is only triggered if a party is denied discovery
under the claim/defense std.
Process of discovery-
1. initial discovery
2. discovery request
3. Initial Refusal- must confer with dislosing party to try and
reach agreement regarding request
4. No resolution-
motion to compel- if granted would order resisting party
to disclose
protective order- court orders info is protected from
discovery and either need not be disclosed or be disclosed in some limited
fashion that addresses party’s concerns
5. Duty to supplement- oncer material is disclosed pursuant to
discovery obligations parties have a continuing obligation to supplement if
info becomes incomplete due to new info or discovery that info was incorrect
in some way
Privilege
Rational:
-Public Policy Reasons – free communications in important social and
legal relationships is deemed to be a superior societal interest than the ability
to have such info available as evidence in litigation
- 4 Types of Privilege:
1. Created by federal common law
2. Created by state law
3. Created by the Constitution
4. Created by federal statute or rule
-
1. Psychotherapist-patient privilege
- Jafee v. Redmond
o Rule: Court established a psychotherapist-patient privilege
2. Attorney-Client Privilege
- Upjohn Company v. U.S. [Part I]
o Rule: application of the attorney-client privilege in the corporate
setting.
2-Way Street: The privilege extends not only to the giving of
advice/info from the attorney, but also the giving of info to the
attorney to enable him to give sound and informed advice
Communications vs. Facts: privilege only protects disclosure of
communications, it does NOT protect the underlying facts
• Ie, Witness at trial can’t refuse to answer a question
about a fact that was mentioned in a communication –
that fact is open to inquiry under the normal system
o Court found that the lower court’s “control group” (only extending
privilege to higher officers) was too narrow because lower employees
often have info needed by a corporation’s lawyers
3. Must not bring in parties over whom the court doesn’t have
jurisdiction (Must also independently satisfy jurisdictional and
venue requirements- since compulsory counterclaims rise out of
same transaction of occurrence- generally be supplemental
jurisdiction)
Supplemental Jurisdiction:
o Permissive vs. Compulsory Counterclaims: federal courts have SMJ over
compulsory counterclaims, but permissive counterclaims require their own
jurisdictional basis.
Permissive don’t fall within court’s SMJ, require independent basis
for jurisdiction
o SMJ Under §1367:
Part A: the court has SMJ over all claims if they are part of the
“same case or controversy” – unless part B takes that away.
Part B: if SMJ is based on diversity jurisdiction, the court does
NOT have SMJ over claims under Rules 14, 19, 20, or 24.
Cross-Claims
- Rule 13(g): Cross-Claims = Claims asserted by a party against a co-party
o Cross-claims may be asserted if:
It arises out of the same transaction/occurrence as the original
action, or
It relates to property that is the subject matter of the original action
15. Intervention
- Mandatory Intervention under (a)(2) vs. Permissive Intervention under (b)(2) –
o A. Mandatory: Pitney Bowes Test. To intervene as of right under Rule
24(a)(2), intervenor must show:
1. A timely motion
Factors to consider for timeliness issue:
• Length of time during which intervenor actually knew or
reasonably should have known of its interest in the case
before it petitioned to intervene
• Extent of prejudice the existing parties may suffer from
timing/delay
• Extent of prejudice intervenor may suffer if intervention is
denied
Best gauge for timeliness
2. An interest relating to the property or transaction that is the subject
matter of the action
Interest must be direct, substantial, and legally protectable (not
remote or contingent)
3. Impairment of that interest without intervention
4. The movant’s interest is not adequately represented by the other
parties to the litigation
Adequate representation is presumed when the intervenor shares
same objective as a party to the suit
Presumption can be overcome by intervenor showing that
collusion, nonfeasance, adversity of interest, or incompetence on
the part of the named party sharing the interest.
o B. Permissive: may be granted when intervenor’s claim or defense and the
main action have a question of law or fact in common.
Principle consideration of the court: whether intervention will
unduly delay or prejudice the adjudication of the rights of the
original parties
Interest in preventing intervention to be used as a means to inject
collateral issues
Factors court may consider:
• nature/extent of intervenor’s interest
• whether those interests are adequately represented by the
parties
whether intervening party will significantly contribute to the full development of the
underlying factual issues in the suit, or to the just/equitable adjudication of legal ques
16. INTERPLEADER
- Interpleader: Joinder device that comes into play when 2 or more parties claim
right to one property/stake
o Stakeholder may bring action against all of the claimants, forcing them to
“interplead” and fight it out amongst themselves to determine which of
them is entitled to the stake
o Stakeholder interests advanced by interpleader –
Spares the stakeholder the vexation of multiple lawsuits with
respect to the same property
Eliminates the risk that in separate suits the stakeholder might be
found liable to more than 1 claimant for the same property
o Interpleader can even be used by stakeholder who has already been sued
by 1 or more claimants
If SH was already sued by C1, and later C2 brings suit, SH can
interplead defensively by filing a counterclaim for interpleader
against C2 under 13(a) and enjoin suit
- Steps for Interpleader:
1. Court decides whether anyone other than stakeholder is entitled to the
stake (making interpleader appropriate remedy). If yes, then …
2. Adverse claimants litigate against each other to see which of them is
entitled to the stake.
1. Same Claim-
I. Transactional Test – defines a claim to be defined as “a group of
operative facts giving rise to one or more rights of action”
Promotes efficiency, but potentially at the cost of unfairness
II. Restatement Transactional Test – Tempers the reach of the
transactional test by imposing commonsense limitations on what
may constitute a transaction. Adds considerations for court to
consider:
a. Whether facts are related in time, space, origin, or
motivation
b. Whether they form a convenient trial unit
c. Whether their treatment as a unit conforms to the parties’
expectations
Note: Issue preclusion only bars issues actually ligitgated and decided in the
prior action; it does not affect claims or defenses that could have been raised
but were not (example-defense of mutual mistake)
1. Same Issue
Think different factual issue
o Sameness = enough of a factual/legal overlap b/w the issues that it is
reasonable to treat them as the “same”
“Reasonableness” should take into account:
• Factual and legal similarities
• Nature of the underlying claims as to each
• Substantive policies that may argue for or against
application of issue preclusion
• Extent to which applying issue preclusion will promote or
undermine fairness/efficiency
o Commissioner of Internal Revenue v. Sunnen
Rule: Narrow construction of the “same issue” under Issue
Preclusion.
Here, court found NO issue preclusion because 2nd claim was
based on a different tax year
• 1st suit b/w IRS and Δ didn’t preclude this 2nd suit b/c it
was under a different year’s tax K.
o Lumpkin v. Jordan
Rule: A federal trial can issue preclude the need for a later state
trial, when the state case is based on the same issues of fact or
law as the federal case was decided on.
Here, issue preclusion prevents Π from bringing claim in state
court re: discrimination issues previously litigated and finally
decided in a federal court: (1) same issue of discrim., (2)
actually litigated, (3) discrim. issue was both decided and
necessary to Suit 1, and (4) same parties involved.
2. Actually Litigated
o If the same issue is presented in both cases, the party asserting the
issue preclusion must also establish the issue was not merely present –
but was actually litigated there.
o Requirements for “Actually Litigated”:
Properly raised
Formally contested between the parties
And submitted to the court for determination
o Parties must formally oppose one another on the issue at some point in
the litigation process and submit the issue to the court for resolution –
(ie, it does NOT have to be adversarial, can be solely on paper, like SJ.)
Here’s the difference from Claim Preclusion!
o Claim preclusion applies even to aspects of a claim that were never
raised or disputed (ie, that were never litigated). But issue preclusion
DOES require actual litigation.