Katherine May Civil Procedure Outline Professor Hurwitz, Fall 2011

Personal Jurisdiction
Two requirements must be met for a court to have jurisdiction over the parties courts must have power over the person or property (substantive Due Process) & proper notice must be given to the D (procedural Due Process).

(1) Does the court have power? Statutory & Constitutional analysis
1st Question: What does the states long-arm statute provide?
D may not be served outside of the forum state unless the forum state has enacted a long-arm state authorizing out-of-state service under certain circumstances. Long-arm statutes permit the court to obtain jurisdiction over persons not physically present within the state at the time of service. *Note: Most long-arm statues exercise jurisdiction to the full extent allowed by the Constitution. But, see Gibbons v. Brown, FL long-arm statute as a restraint on jurisdiction Only if you decide that the long-arm statute does reach the facts of the case need one make the second, Constitutional inquiry Federal court: Rule 4(k)(1)(a) requires a federal judge to exercise jurisdiction to the same extent as a state court of general jurisdiction in the forum state. (The Constitution would allow federal courts to exercise nationwide jurisdiction, but 4k1a limits this) *Note: exceptions to this occur if a specific fed statute or Rule authorizes more extensive PJ. Rule 4(k)(1)(b)-(c). (ie. 28 USC 2361 gives federal court power to serve process anywhere in the nation)

2nd Question: If the long-arm statute is satisfied, is exercise of personal jurisdiction constitutional? That is, is it in
accordance with the 14th Amendments Due Process Clause?

(a) Is there General Jurisdiction? D has such substantial contacts with the forum state to make it fair to
assert jurisdiction even over claims unrelated to those contacts.

For individuals: state of domicile.

A person is domiciled if he is currently residing there and he has the intention to remain there indefinitely. A person can only have one domicile at a time (distinct from residence). Jurisdiction may be exercised over a person domiciled within a forum state even if the person is temporarily absent from the state. Milliken v. Meyer Presence (Tag Pennoyer) Today, presence and service within a state continues to be a constitutionally valid way of conferring jurisdiction in all cases, even where the individual is an out-of-state resident who comes into the forum state only briefly, and the suit is unrelated to activities within the state. See Burnam Consent: (see C) Status of its Citizens (ie. Divorce)

For corporations: Dual Citizenship

State of incorporation and where a companys activities are very pervasive as to submit it to general jurisdiction of that state - Nerve Center (Hertz) Even when the cause of action does not arise out of or relate to the foreign corporations activities in the forum state, due process is not offended by a States subjecting the corporation to personal jurisdiction when there are sufficient contacts between the state and the foreign corporation. When a claim does not relate to Ds in-state activities, greater contacts between the D and the forum state are required. The instate activities must be systematic and continuous. See Perkins

But, mere purchases, even if occurring at regular intervals, are not enough to warrant a States assertion of PJ over a nonresident corporation in a c-o-a not related to those purchase transactions. Helico

(b) Alternatively, is there Specific Jurisdiction? International Shoe two-part test only applies when
contacts fall short of general jurisdiction. Generally speaking, the more closely related the contacts & the facts giving rise to a claim are, the more likely a court will uphold (specific) jurisdiction.

1. Did the D purposefully avail himself of the forum state? (Shoe test part 1, Minimum Contacts)
If no, exercise of jurisdiction would violate the defendants right to due process, and our notions of fair play & substantial justice. If yes

2. If yes, in appropriate cases, courts will evaluate other factors in determining if the exercise of jurisdiction would be fair/reasonable. (World-Wide Volkswagen) a. Burden on D (primary concern) b. Forum states interest in adjudicating dispute c. Ps interest in relief d. Shared interest in efficient resolution of controversies & furthering fundamental substantive social policies

Purposeful direction at the forum state

Minimum contacts cannot be based solely on unilateral activity of the P. (Hanson v. Denkla) Suits based on Contractual Relationship: The mere fact that one party to the K is a resident of the forum states does not by itself mean that the other party has minimum contacts with that state, but the whole contractual relationship may be sufficient to confer jurisdiction in some cases (Burger King). Minimum Contacts requires that D have taken actions that were purposefully directed towards the forum state. (ie. D sold goods in the state, bought property in the state, marketed to the state, etc.) Usually, a company will be found to have the requisite minimum contacts with the forum state only if the corporation has somehow voluntarily sought to do business in, or with the residents of, the forum state. McGee represents the least contact that has been approved by the SC as the basis for PJ Use of Agents: Where an out-of-state corporation does not itself conduct activities within the forum state, but uses another company as its agent in the state, the principal (foreign corporation) may be sued there, if the agent does a significant amount of business on the foreign companys behalf. (International Shoe) Placing a product into the stream of commerce theory is not enough to subject an out of state manufacturer/vendor to PJ there, without more. Instead, some effort to market in the forum state (either indirectly or directly) is required to satisfy purposeful direction. World-Wide Volkswagen Corp Nor is minimum contacts sufficient to sustain jurisdiction satisfied by the placement of a product into the steam of commerce coupled with awareness that its product would reach the forum state, if no efforts are directed by the D at the forum state. Asahi Metal

Fairness Considerations Even if D has the requisite minimum contacts with the forum state, the court will
not exercise jurisdiction if considerations of fair play and substantial justice would require making D defend in the forum state so unreasonable as to constitute a Due Process violation. *Note: In most cases, if D has the requisite minimum contacts w/ the forum state, it will not be unreasonable for the case to be tried there. The Ds conduct & connection with a forum state must be such that he should reasonably anticipate being haled into court there. World-Wide Volkswagen Corp Asashi made clear, and Burger King hints at, that if you have purposeful direction (so as to satisfy minimum contacts), still may be unreasonable and unfair to subject D to forum. Once you establish

Katherine May minimum contacts, in some cases, courts consider: in light of all the circumstances, is it fair/reasonable to subject D to PJ? See McIntyre v. Nicastro majority still not willing to accept SOC across the board. A state may have jurisdiction over a D who acts in a way that he knows will cause harm in another state. But passive availment (ie. Info on a website) not enough. Pavlovich v. Superior Court

(c) Alternatively, can personal jurisdiction be obtained through Ds consent?

Jurisdiction over a party can be exercised by virtue of consent (express or implied), even if D has no contacts whatsoever with the forum state. Consent by filing action. see Adam v. Saenger Consent by contract: Consent-to-jurisdiction clause (permissive) National Equipment Rental Forum Selection Clause: restrictive, limits jurisdiction to 1 forum, Carnival Cruise Lines Cognovit clause: authorizes an attorney to confess judgment against person signing it; consent to jurisdiction and a waiver of right to trial and appeal Consent by appearance in court & inaction. Rule 12(h)(1) Use it or lose it! Must raise the defense of PJ first time raise any issue, whether in pre-answer motion or answer.

(2) Has There Been Appropriate Notice? Even if the court has the power to exercise jurisdiction over a
D, the court may not exercise adjudicatory power unless D received adequate notice of the suit against him. D must not only be notified of the suit, but must also be given an opportunity to be heard. Rule 4(e) governs service of process on an individual: Personal Substitute: handing summons & complaint to a person of suitable age & discretion residing at Ds residence, 4(e)(2)(b) Any manner provided by the law of the state where the district court sits or where the person is being sued, 4(e)(1) Rule 4(h)(1) service on a corporation may be made by leaving the papers with an officer or agent Waiver of Service Rule 4(d): P in effect serves summons & complaint by mail. If D agrees, no actual inperson service is needed. Incentives for D: if D refuses, the court will impose the costs incurred 4(d)(2) & D gets extra time (60 days instead of 20) to respond to complaint if cooperates, 12(a)(1)(a)(ii) By waiving service, D also waives any objections to the sufficiency of service, Rule 12(b)(4) & (5) Exceptions to 4(k)(1)(a) 3 situations where federal court has longer jurisdictional reach than state court: 1. When a party is joined to litigation under Rule 14 or 19 100 Mile Bulge 4(k)(1)(b) 2. When a federal statute specifically provides for broad, national power of fed court 3. Claims against Ds not subject to personal jurisdiction in any state, ie. Foreign persons/entities that have insufficient contacts with any single state to create PJ, 4(k)(2).

Reasonableness Test (Mullane): In order for notice to be satisfied, it is not necessary that D actually learned of
suit, so long as the procedures used to alert him were reasonably likely to inform him and afford them an opportunity to present their objections. (aka best notice practical.) So in certain cases, mass mailings are deemed satisfactory. (ie. Where all intended recipients had the same interests, contacting a certain # of them would serve approximately the same function as contacting all.) But in subsequent cases after Mullane, courts have held that it will require very unusual circumstances to justify failure to give personal notice to any D whose identity and whereabouts are known and who isnt seeking to evade service.

Quasi in Rem Jurisdiction Where in personam jurisdiction over D is not attainable; property is seized, not as
the object of litigation (in rem) but merely as a means of satisfying a judgment against D (Pennoyer). Mere presence of property within a state is insufficient to confer jurisdiction on a court absent independent minimum contacts with the forum state. Shaffer abolished the utility of quasi in rem jurisdiction since the same minimum contacts needed for it would suffice to establish PJ Shaffer did not do away with pure in rem, however. So in rem jurisdiction can be exercise so long as the property is the subject of the litigation/underlying cause of the action.

Subject Matter Jurisdiction Because the federal courts are courts of limited jurisdiction, in order to
hear a case the court must have both personal & subject matter jurisdiction over the claim. Article III, Section 2 of the Constitution gives federal courts power to hear claims (1) between citizens of different states and (2) suits involving a federal question. The party seeking to invoke the jurisdiction of a federal court must make showing of the courts SMJ in the pleading, Rule8(a). Rule 12(h)(3) provides that SMJ can be raised at any time, and requires the court to dismiss an action at any time if it discovers that the court lacks SMJ. 1st Question: Does the case fall within one of the enumerated categories of Article III sec. 2 of the Constitution? 2nd Question: Has Congress further authorized the lower federal courts through a statute to assume jurisdiction? Note: Congress has not given lower federal courts the full jurisdictional power authorized by the Constitution.

(1) Is jurisdiction based on a federal question? (28 USC 1331)

Although identical in text, 1331 is narrower than Article III because Congress wanted to limit the suits that come to federal court. Well-Pleaded Complaint Rule (Mottley): The federal question must be integral to Ps cause of action as revealed by Ps complaint. Ps claim/basis for relief must be based on federal law (Constitution). It is not enough for federal question jurisdiction that P anticipates a defense based on a federal statute/Constitution or even that Ds answer does in fact raise a federal question. Note: Since Mottley, Congress has not enacted a statute enacted a statute extending 1331 to the full limits of the Constitution (which would allow for the federal courts to hear a case so long as a federal question came up at some point during the suit). Also note, the Supreme Court does not abide by Mottley because of the appellate jurisdiction, so only inferior courts are affected by this. A case can start out as a federal case, but then lose its federal status after a judgment or settlement. A settlement agreement is an ordinary K, whose breach would not arise under federal law. But if the parties had embodied their agreement in a consent decree, its breach would arise under federal law because federal courts have jurisdiction to enforce their own judgments.

(2) Is jurisdiction based on diversity? (28 USC 1332)

A partys citizenship for diversity purposes is determined at the commencement of the action (filing). If parties on opposite sides are citizens of the same state when the action is commenced, there is no diversity, even if by the time of trial the citizenship of one party has changed so that diversity is now present. Complete Diversity Required: No P may be same citizen of same state of any D. Constitution would allow for minimal diversity, that is, at least one claimant diverse in citizenship from another. But since Strawbridge, courts have insisted on complete diversity. Pleading Important!! see Redner Court can retain diversity jurisdiction by dismissing a non-diverse party held not to be indispensable. Domicile controls. State of residence + intent to remain. Hawkins A suit between citizen of Mexico and citizen of France does not fall within diversity (both aliens).

Katherine May Aliens as Additional Parties to Suit: In a suit between citizens of different states, the fact that foreign citizens are additional parties does not destroy diversity. Resident Alien is deemed a citizen of the state in which he is domiciled. 1332(4) *Note: except in cases where it would be non-resident alien v. alien; would violate Constitution. Saadeh Corporations are deemed a citizen of any state where it is incorporated or has its principal place of business. 28 USC 1332(c). Only one principal place of business nerve center Hertz For diversity purposes, citizenship of each of the members of a partnership must be considered. The representative of a child, incompetent, or deceased has the same citizenship as the individual represented. 28 USC 1332(a)(2) 28 USC 1359 deprives courts of jurisdiction in those cases in which a party has been improperly or collusively joined to invoke diversity jurisdiction. Amount in Controversy Requirement: In diversity cases online, the amount in controversy must exceed $75K, exclusive of interest and costs. *Note: Congress way of restricting diversity jurisdiction. Look at the pleading: The fact that P eventually recovers far less than the amount does not by itself render the verdict subject to reversal and dismissal on appeal for lack of jurisdiction. Aggregation Rules: A single P with two or more unrelated claims against a single D may aggregate claims to satisfy the statutory amount. But where P has joined claims against multiple Ds, each D must have claims against him equal to the jurisdictional amount. If two Ps each have claims against a single D, they may not aggregate if their claims are regarded as separate and distinct Special Rule for Class Actions: If at least one Ps claim meets the amount, other Ps may join their related claims against the same D under supplemental jurisdiction. Exxon Mobil But, if no single P has a claim meeting the amount, aggregation is normally not allowed. Counterclaims: Where a Ps claim exceeds $75K, a compulsory counterclaim may be heard regardless of the amount, but a permissive counterclaim requires an independent jurisdictional basis.

Defenses to Jurisdiction
Motion to Dismiss for lack of jurisdiction: 12(b)(2) personal; 12(b)(1) SMJ *Note: there are times that it may be strategically better to show up in court and waive your jurisdictional defense, because P can just bring suit in the proper court. In theory, all a successful motion to dismiss for want of PJ does is delay the suit. Effect of different dismissals in fed court. If a case is dismissed for want of SMJ, Rule 12(b)(1), P is free to re-file in state court. If a case in federal court is dismissed for want of PJ, Rule 12(b)(2), P is precluded from re-filing in state court in same state because the federal courts decision that PJ is lacking will bind the court. If a case is dismissed for failure to state a claim, Rule 12(b)(6), P is precluded from re-filing in state court because operates as adjudication on the merits. In answer to complaint. Still have to file a motion to dismiss or request that a judge rule on it. Collateral Attack on Default Judgment: If D fails to appear in court, a default judgment will be entered against him. D can then collaterally attack the default judgment when P seeks to enforce it in a subsequent proceeding. Most commonly, D collaterally attacks the earlier judgment on the grounds that State 1 did not have personal jurisdiction over her, or did not have SMJ.

Note: this can be risky, because by not appearing you waive every other defense besides jurisdiction; cannot raise any other defense on the merits. Note: Cannot make a collateral attack (even for lack of SMJ) after final judgment entered.

(3) Is there supplemental jurisdiction over a state claim? (28 USC 1367)
*Note: Only do a 28 USC 1367 analysis if additional claims themselves do not independently satisfy SMJ. Under the doctrine of supplemental jurisdiction, new parties and new claims may not have to independently satisfy subjectmatter jurisdiction if they can be tacked on to the original claim that by itself satisfies SMJ requirements.

28 USC 1367
(a) Constitutional inquiry requires that additional claims/parties be so related that form part of the same case or controversy common nucleus of operative fact In re Ameriquest (b) Diversity cases: when the original claim SMJ is based solely on diversity, special rules apply. 1367(a) must be satisfied, and any party added cannot eliminate complete jurisdiction. When Supplemental Jurisdiction Applies in Diversity Cases: Compulsory counterclaims Rule 13(a) + additional parties to compulsory counterclaims Rule 13(h) Cross-claims by one D against another Rule 13(g) Rule 14 Impleader of 3rd party Ds, for claims by and against 3rd party Ps, and claims by 3rd party Ds, but not claims by the original P against 3rd party Ds. When Supplemental Jurisdiction Does Not Apply in Diversity Cases/the claim itself must independently satisfy the requirements of SMJ: Claims against 3rd party Ds made by an original P pursuant to Rule 14(a) Compulsory Joinder under Rule 19(a) Permissive Counterclaim Rule 20 joinder of Ds Intervention under Rule 24: this is true whether the intervention is permissive or of right *Note: Basically, additional claims asserted by Ds fall within the courts supplemental jurisdiction, but additional claims (or addition of new parties) by Ps are generally not included. (c) Discretion to decline to exercise SJ: if (1) the claim raises a novel or complex issue of state law, (2) the claim substantially predominated over the claim which the district court had original jurisdiction over (3) the district court has dismissed all claims over which it has original jurisdiction (4) Other compelling reasons. (Szendry-Ramos) If a court dismisses state law claim, can appeal or re-file state & federal claims in state court. 1367(d) provides for 30-day window if state doesnt have savings statute to re-file claims in state court.

Venue Questions, 28 USC 1391-2 Is venue appropriate, and even if so, is there an argument to
transfer venue? Only matters if jurisdiction over parties has already been established. Venue is concerned with what county or district of the state the case should be tried in and is entirely a statutory matter.

In General:
Most commonly, venue is based on the county or city where the defendant resides. Many states also allow venue based on where the c-o-a arose, where the D does business, etc. When an action is brought in state court, federal venue statutes are irrelevant 1391-2 only apply to actions originally brought in federal court. In many respects, the inquiries necessary under venue statutes duplicate those involved in PJ questions For venue purposes, a corporate D is deemed to reside wherever it is subject to PJ, 28 USC 1391(c) An alien may be sued in any federal judicial district, 1391(d) but, when there are both foreign and domestic Ds, 1391(b) must be satisfied as to the domestic Ds. Dee-K

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Transfer & Forum Non Conveniens

Forum non conveniens CL doctrine which allows federal/state court to use discretion to dismiss a case for refilling in another state/country where matter may be more properly and fairly heard. Ordinarily, there is a strong presumption in favor of the Ps choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum (burden on D to prove good reason) Piper Aircraft Courts regularly require that a D moving to D on grounds of inconvenient forum agree in advance to waive SOL, PJ and venue defenses in the alternative forum.

28 USC 1404(a) Transfer: applies only to federal courts, but states often have analogous statutes. Transfer
occurs among judicial districts, for the convenience of parties and witnesses, in the interests of justice. Which federal district court should try the action? Cases can only be transferred to any district where P could have filed suit to begin with. 28 USC 1406 allows transfer (or dismissal) from a district in which venue is improper Where venue is proper but jurisdiction is lacking, 28 USC 1631 permits transfer to a court with jurisdiction.

28 USC 1391 Three basic ways to establish venue in a judicial district for both fed. question & diversity actions
(1) If any D resides in that district, and all Ds reside in the state containing that district (2) If a substantial part of the events giving rise to the claim occurred There can be multiple districts qualifying for place of events venue, as long as each was the location for a substantial party of the events relating to the claim (3) If at least one D is subject to personal jurisdiction (Diversity)/found (Federal Question) in the district and no other district qualifies. Escape Hatch: Used most commonly in cases which nearly all the events occurred abroad Diversity 1391(a)(3) Federal Question 1392(b)(3) *Note: a D found in a district is probably subject to PJ in that district, ie. Has minimum contacts with the districtso no real difference between the two

Removal 28 USC 1441(a): Any action brought in a state court that the P could have brought in a federal
court may be removed by a D to federal district court. *Note: Cannot remove if any D seeking removal is a citizen of the state where suit was brought, 1441(b). In a case in which parties are not diverse and the case is improperly removed to federal court, the judgment is valid if there was diversity at the time judgment was entered. Caterpillar Where the claim for which there is original federal jurisdiction is a federal question claim, and there is another claim for which there is no SMJ, D may remove the whole case 28 USC 1441(c), or just the federal question. If the claim is not sufficiently related to be removable pursuant to 28 USC 1367, federal court will remand state claim to state courts. The removal process is automatic. However, if the case is improperly removed, a federal judge will remand and may impose sanctions, 28 USC 1447(c). Procedure for removal 28 USC 1446. D must file for removal within 30 days after being served with the summons or complaint to file notice of removal (contain brief statement of grounds for removal, state court pleadings, etc.) in federal court, and serve P with it. P then has 30 days to contest removal. If when the complaint was served it wasnt removable, but now it is, D has 30 days after the time which it became removable, so long as its within a year of the original complaint being filed. Note: this 1-year cap only applies to diversity jurisdiction cases.

What law applies when a case is in a federal court on diversity basis?

If federal question, federal law applies. Problems arise when the suit is in federal court on diversity.

Erie problems in general:

To prevent forum shopping (where P or D chooses court more favorable to the case), the courts generally apply state law in diversity cases. Rules of Decision Act, 28 USC 1652, provides that, in the absence of a federal constitutional or statutory provision on point, the federal courts must follow state constitutions and statutes. *Note: The RDA is silent on what a federal court should do where there is no controlling constitutional or statutory provision. What law should the federal court follow where what is at issue is common law, or judge-made law? Erie overturned Swift Today, federal courts sitting in diversity must apply state judge-made law on any substantive issue. General federal common law may not displace that of the states in areas in which the Constitution grants lawmaking powers to the states.

(1) Ascertaining State Law: How does a federal court determine what the state law is when there is no state
statute on point? This question is resolved easily if the highest court of the state where the federal court sits has recently spoken on the issue, but this is not always the case. The solution: a federal court must try to determine how the states highest court would determine the issue if the case arose before it today. Fed court will first look to intermediate-court decisions. If no other court in the state has ever considered the issue in question, the court can look to other sources (ie. Practice of other states, other authorities, etc.). Can also issue a certification to states supreme court to answer a question of law but the states Supreme Court doesnt have to answer, and not all states have laws allowing for certification. State Decision Obsolete: where there is an old determination of state law by the highest state court, the federal court hearing the present case is always free to conclude that the state court would decide the issue differently today. In this situation, the old ruling is rendered obsolete/not binding. *Note: What the federal judge says is not binding on states supreme court states supreme court is the final arbiter of state law.

(2) Procedure/Substantive Distinction Procedural law governs what happens in court & substantive law orders
the way people conduct themselves outside of court/interact with one another. 1. Constitutional provision? If a Constitutional provision is on point, it wins every time. 2. Federal Procedural Statute (not Rule) on point? Is it legal? If yes, it controls. 3. Federal Rule vs. State Procedural Rule? The Rules Enabling Act, 28 USC 2071, gave the SC power to promulgate rules of federal procedure. A rule promulgated by the Court and not overruled by Congress has the force of law. FR takes precedence over state procedure. Does the Rule in fact apply to the issue at hand? If yes, apply Hanna two-part test (1) Is the Rule valid under the Rules Enabling Act? Is it a rule of practice & procedure? (2) Is it Constitutional? The rule must not abridge, enlarge, or modify the substantive rights of any litigant. If yes to both, Rule must be applied, even if it differs from state practice in a significant way. *Note: As long as the Rule is arguably procedural it will not be found to violate this test. In fact, no FR has ever been found to violate this test. 4. No Federal Rule, just federal practice? The Court rejected the outcome-determinative test (Guaranty Trust). Now, the federal court attempts to balance the state & federal policies. Byrd

Katherine May Balancing Test: Countervailing considerations (independence of the federal judicial system) are overcome if (1) state rule is bound up with the rights & obligations of the parties in such a way (2) if applying federal law would lead to inequitable results or (3) if applying federal law would lead to forum-shopping.

Rules Applicable To The Framing of a Lawsuit

What pleadings are allowed? See Rule 7
Complaint, answer, counterclaim, reply to counterclaim, cross-claim, answer to cross-claim, third-party complaint, answer to third-party complaint. Motion to dismiss is not a pleading Rule 8(d)(2) & 8(d)(3) allow for pleading in the alternative, meaning a party may set forth two or more statements of a claim or defense alternatively or hypothetically.

What must an attorney do before he/she files a pleading or motion? See Rule 11 Sign the pleadings Do reasonable investigation into the validity of the claim, Rule 11(b). Must have reasonable factual support, 11(b)(3) Must be a reasonable/non-frivolous argument, 11(b)(2) Sanctions: Rule11(c) Opposing party serves you with a motion for sanctions pursuant to Rule 11(c)(2). Other party then
has 21 days to withdraw or amend the pleading to avoid sanctions - otherwise complaint is filed. If the mistake involves both facts and law both client & lawyer can be sanctioned If it involves the law only the lawyer can be sanctioned. Rule 11(b)(2) Most common sanctions: the award of attorneys fees to the other side. *Note: Rule 11 only applies to papers filed in court. Mattell, Inc. Who has the burden of proof & persuasion? If you have to plead it, then the burden of proof is on you to prove the allegation through evidence and persuasion at trial. Celotex

1. Complaints Rule 8(a)

There are 3 essential elements to a complaint: (1) Allegation of jurisdiction (2) Short & plain statement of claim level of factual detail required is not high since gaps in the facts are remedied through discovery; enough facts to put the D on reasonable notice about what is being alleged. Rule 84 forms in appendix suffice. In order for a complaint to survive dismissal, the complaint must include enough facts to state a claim to relief that is plausible (not merely conceivable) on its face. Twombly On subjects understood to raise a high risk of abusive litigation, (ie. Fraud or mistake) must state factual allegations with greater particularity than Rule 8 requires. Rule 9(b)-(c) Stradford v. Zurich Ds counterclaim failed because D failed to identify when/how P lied Purposes of such a rule is to prevent insubstantial claims from advancing to discovery. (3) Demand for relief money damages, injunction, etc. Haddle v. Garrison

2. Response to the Complaint a. Pre-Answer Motions to Dismiss. Rule 12(b)(1)-(7). Why? A pre-answer motion can end a case without
ever reaching the merits. A pre-answer motion also stops the clock 12(a)(4), delays the need for D to answer. Rule 12(b)(1)-(7) responses may also be raised in answer, so long as motion to dismiss isnt filed.

If Rule 12(b) motion is filed, must include all objections to PJ, venue, or sufficiency of process/service in same motion, 12(g)(2). Otherwise, these defenses are waived. Rule 12(h). Answer must include these defenses, as well as Rule 12(b)(6) defense (failure to state a claim) or Rule 12(b)(7) defense (failure to join indispensable party) or these defenses are waived. 12(b)(6) failure to state a claim. So what! If D files an answer, not a pre-answer motion, D can accomplish same result by making a Rule 12(c) motion for judgment on the pleadings. *Note: A court will almost always grant leave for P to amend complaint following a 12(b) dismissal. Subject matter jurisdiction may be questioned at any time, either by court or parties. Rule 12(h)(3). b. Answers Rule 12(b) can include every defense, in law or fact, to claim for relief *Note: Must be signed by Ds lawyer. Rule 11(b)(4) applies here as well. Rule 8(b) requires that D admit or deny each count of the complaint (specifically). Zielinski Rule 8(b)(5) Statement of a lack of knowledge is effective denial Rule 8(b)(6) Failure to deny is admission Certain affirmative defenses must be included in the answer or they are waived, Rule 8(c). Non-exhaustive list; any defense which relies on facts particularly within the Ds knowledge is likely to be found an affirmative defense and thus must be raised in answer. (Jones v. Block) c. Motion for More Definite Statement Rule 12(e): disfavored. See Bell v. Novick d. Default: if the outcome is foreordained (ie. D has not made payments required by K), hiring a lawyer to defend the claim may not be a sensible move

3. Counterclaim Rule 13
Compulsory if arises out of the transaction or occurrence that is the subject matter of the opposing partys claim and does not require adding another party whom the court cannot acquire jurisdiction Rule 13(a). Waived if not made; will be precluded in future litigation! Always falls within the courts SMJ (1367 supplemental jurisdiction) Permissive: all other claims (related or unrelated) between D and P. Rule 13(b). Must have an independent jurisdictional basis if in federal court, Plant *Note: Rule 7(a)(3) requires a reply if the answer contains a counterclaim designated as one. 4. Cross-Claim Rule 13; between co-parties (ie. D vs. D), must have risen out of the transaction or occurrence that is the subject matter of the original action. Within the supplemental jurisdiction of a federal court; no independent SMJ basis needed.

5. Third-Party Complaint Rule 14

Brought by a D against a party not yet part of the lawsuit. (If the party is already in the suit, the D would bring a cross-claim or counterclaim) Only allowed if the 3rd party D is or may be liable to *the original D+ for all or part of the Ps claim against it. Rule 14(a). Limited to indemnity-type claims. Forbidden: Its him, not me use of Rule 14 The original P can bring claims against 3rd party Ds, but in a diversity suit federal court must have independent basis for jurisdiction over that claim (supplemental jurisdiction wont work). See Kroger *Note: PJ almost never a problem since the 3rd party will have been involved in the occurrence or transaction that led to the original claim.

Amendments to Pleadings, Rule 15 The FRs allow for liberal amendment of pleadings. As of Right Rule 15(a)(1)(a) within 21 days of serving a pleading don't need judges approval, as long
as the other party has not already responded, can automatically amend. Can only amend complaint once as of right. Rule 15(a)(1)(b) for a responsive pleading, 21 days after service to amend

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If cannot amend as of right, the pleading may only be amended by leave of court or by consent of the other side. Judge has broad discretion to allow amendments to pleadings after trial gets under way, when justice so requires Rule 15(a)(2) Aquaslide Normally, the court will deny leave to amend only if the amendment would cause actual prejudice to the other party. The burden is on the party opposing the amendment to show prejudice.

What if the statute of limitations has run?

You can still amend if the amendment relates back to the original complaint. If the new claim or defense arises out of the same original transaction, you can file the amendment as if it were filed at the beginning of the case, Rule 15(c)(1)(b). No Moore v. Baker / Yes Bonerb Changing the party against whom the claim is asserted: the amendment will only relate back to the original complaint if (1) the amendment covers the same transaction or occurrence as the original pleading, (2) the party to brought in knew or should have known the action would have been brought against it, but for a mistake concerning the partys identity and (3) the amendment is made within 120 days of the expiration of the statute of limitations, Rule4(m). Rule15(c)(1)(c)(ii). Hurwitz case supplemental

Adjudication Without Trial

Involuntary & Voluntary Dismissal
Rule 4(m): must serve pleading within 120 days after filing; if you cannot serve it within 120 days, ask for more time from judge Rule 41(b) provides for involuntary dismissal. The D may move for dismissal, and the court may order dismissal, for (1) failure to prosecute, (2) failure to obey court orders (3) lack of jurisdiction or venue; or (4) failure to join an indispensable party. An involuntary dismissal under 41(b) is with prejudice (and thus has preclusive effect). Exceptions. Adjudication not on the merits if dismissal is for: Lack of jurisdiction (or insufficient service) Improper venue Failure to join a party under Rule 19 Voluntary Dismissal by P: P can also file a notice of dismissal (ie. To re-file in another jurisdiction) pursuant to Rule 41(a)(1), without prejudice any time before the D serves an answer or moves for summary judgment. Only the first voluntary dismissal is without prejudice. If you have previously dismissed a claim under Rule 41 and you dismiss again, thats a dismissal on the merits Rule 41(a)(1)(b). After D has answered or moved for SJ, P must get the courts approval Rule 41(a)(2).

Summary Judgment Rule 56

A victory without trial is called SJ. A party may move for SJ at any time until 30 days after the close of discovery. Rule 56(c)(1)(a). Summary judgment is appropriate, no matter which party is the moving party, where a party fails to make a showing sufficient to establish the existence of an element essential to that partys case, and on which that party will bear the burden of proof at trial. The person moving for SJ bears the initial burden of production in the SJ motion. Just explain reasons for concluding that the record reveals no issue of material fact and make a showing supporting any claims on which you would bear the burden of proof at trial. Put up or shut up! Celotex Opponent cant rest on pleadings. To withstand SJ once the moving party has met their burden, the opposing party must reply within 21 days after the motion is served, Rule 56(c)(1)(b), with affidavits/evidence of specific facts showing there is a genuine issue for trial. Rule 56(e)(2). Bias

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Opposing party receives the benefit of the doubt. The court construes the facts most favorably to the party opposing the motion. SJ is only appropriate if there is no way that the movant can lose at trial. Partial summary judgment is available with respect to certain claims in a lawsuit, Rule 54(b).

Directed Verdicts Rule 50 Same substantive rules apply for granting directed verdicts as summary judgment,
only difference is when they are made (SJ before trial, DV after trial & before case goes to jury). Occur on a partys motion when the opposing party has been fully heard on the relevant issues. Either party may move for directed verdict after both sides have rested. The court will only direct a verdict if the evidence is such that reasonable people could not differ as to the result. A directed verdict takes the case away from the jury.

Settlement:
Control risk. Trials are unpredictable and tend to be all-or-nothing. Summary judgment eliminates the clear cases, so the only cases that make it to trial are the ones where the evidence doesn't point clearly in one direction. Save money. Trial is expensive (lawyers time, exhibits, expert witnesses, etc.) Contracting to Dismiss: Prospective P agrees not to bring a lawsuit, or to drop one already filed. Freedom to Settle. Judge does not need to approve settlement for fairness (except in class actions) though he must grant Ps request to dismiss the case if one has been filed. Consent Decree, a judgment that embodies the parties agreement. With a consent decree, either party can invoke the courts jurisdiction to enforce its own judgments. Mediator. Can assist in negotiation process, but mediators do not rule on the rights of the parties. No coercive power succeeds only if the parties agree. *Note: some states require cases to be submitted to mediation before they will set a trial date. The ADRA requires federal judicial districts to offer the parties alternatives to litigation, such as mediation or non-binding arbitration. Arbitration: Most often occurs if parties have K with arbitration agreement National policy in favor of enforcement of arbitration agreements. A court may refused to enforce an agreement upon such grounds as exist at law for the revocation of any K. An arbitrator decides a dispute after hearing from both sides. (Private, non-judicial adjudication) Awards are final not subject to appeal/further challenge Parties can choose the parties and design their own procedure More private arbitration hearings not normally open to public But, arbitrators charge by the hour, often at rates higher than those charged by attorneys.

Other Rules
Joinder of Claims, Rule 18(a). Once a party has made a claim against some other party, he may make any other
claim he wishes against that party. Note: Joinder of claims is not required by Rule 18(a), but the rules of res judicata may cause a claimant to lose the ability to bring the un-asserted claim in a later suit. Rule 42(b) allows trial judge to sever claims for trial convenience. *Note: The court may lack SMJ over claims joined by Rule 18.

Permissive Joinder of Parties, Rule 20.

20(a): Multiple Ps may voluntarily join together in an action if (1) the claims for relief arise from a single transaction/series of transactions or occurrences & (2) there is a question of law or fact common to all Ps Absolute identity of all events is unnecessary. So long as the events are logically related they are generally regarded as comprising a transaction or occurrence. The rule does not require that all questions of law & fact raised by the state be common, just that at least one is. Mosley

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Katherine May Same tests apply if a P has a claim against multiple Ds. However, where joinder of multiple Ds is involved, the requirements for PJ must be met with regard to each D individually (ie. Each must be personally served, have minimum contacts, be amenable to suit). All parties (Ps and Ds) joined under Rule 20 must independently meet SMJ if in federal court. So if the action is brought as a diversity action, the diversity must be complete. D may challenge joinder of parties. Under Rule 21, the parties found improperly joined will have their cases severed. Judge also has independent power to consolidate and sever claims under Rule 42. In certain situations, additional parties must be joined, assuming jurisdictional requirements are met, Rule19(a)(1)(b). When? If complete relief cant be accorded without them, or the absent party has an interest related to the action where it would be unfair to leave them out, etc. Joint tort-feasors not necessary parties Temple If party is indispensable and joinder would ruin jurisdiction, the whole action must be dismissed, Rule 19(b). Helzbergs *Note: remember that supplemental jurisdiction does not apply to the parties joined by Rule19(a) if the person who is sought to be joined as a D is not diverse with all Ps, or if the claim against that would be D does not meet the amount-in-controversy requirement in a diversity case. The joinder may not take place if it will ruin diversity.

Compulsory Joinder, Rule 19.

Claim Preclusion, res judicata

Generally, claim preclusion forbids a party from litigating a claim that was or could and should have been raised in former litigation. Un-litigated claims can be precluded. 28 USC 1738 requires the federal court to honor a state court judgment the same way a state-court would. Look to jurisdiction rendering the judgment when determining preclusive effect of judgment. Semtek court said that the preclusive effect of a federal judgment rendered in a diversity action should be the same as would be attached to that judgment if a state court in the forum state had rendered it. Full Faith & Credit clause of the Constitution applies between state courts Rule 8(c) allows opposing side to waive res judicata defense. Rule 42(b) gives trial court authority to sever parts of complaint for trial so a smart P will combined all the claims arising out of a transaction into a single suit.

Transaction Test: 4 Requirements (1) Same claim: Does it arise out of the same nucleus of facts? Goal of efficiency: Frier Consistency: Martino v. McDonalds
(2) Could it have been raised in the original case? Was it a claim at the time of the first suit? If not, no claim preclusion. Searle Brothers (3) Mutuality requirement: must be the same parties. everyone should have his own day in court -Some exceptions: Parties in privity when a party is so closely connected to a suit that it is appropriate to treat as if she were named to the suit. Ex. One corporation is bought out by another. Agreement to be bound by other partys suit. Substantive relationship (typically real property owners) Fiduciary trustees Class Actions If you controlled the party in their litigation (ie. Paid them to bring suit) Taylor v. Sturgell Declined preclusion by virtual representation (4) Suit #1 ends in a final judgment on the merits

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A judgment is considered final even though it is on appeal. This is to avoid needless appeals (appeals just to avoid the claim preclusive effect of suit 1). A judgments preclusive affect is limited by what the law of the jurisdiction where the judgment was entered says. Exceptions if first court did not have jurisdiction over claim Gargallo v. Merrill Lynch A dismissal due to 12(b)(6) failure to state a claim is a final judgment on the merits in federal court, unless the court specifies otherwise. Same for involuntary dismissals under Rule 41(b). Same Evidence Rule (Minority) abandoned by court in Rush for Transaction Test (broader) Policy reasons for transaction rule over evidence rule for claim preclusion: Promotes efficiency; designed to compel parties to consolidate all closely related matters into one suit Prevents inconsistent results

Issue Preclusion, Collateral Estoppel

Prevents re-litigation of a particular issue or fact of law. When a particular issue of fact or law has been determined in a prior proceeding, then brought up again in a subsequent proceeding between the same parties, even on a different cause of action, both parties are precluded from claiming that the issue should have been decided differently than it was in the first action.

(a) Major Distinction from Claim Preclusion

Issue preclusion applies as long as any issue is the same, even though the causes of actions may be different. By contrast, claim preclusion applies only where the claim or cause of action is the same. Whereas claim preclusion prevents the second suit altogether, issue preclusion merely compels the court to make the same findings of fact that the first court made on the identical issue.

(b) Four Requirements for Issue Preclusion:

1. 2. 3. 4. An issue of fact or law that was actually litigated in the first suit (not could have/should have been like in claim preclusion) The issue must have been actually decided by the first court. valid & prior final judgment made The first courts decision on the issue must have been essential to the outcome of the first suit. Where a judgment rests on alternate findings, either of which would be sufficient to sustain it, neither is given issue preclusive effect, since the case could have turned out the same way without that finding. Parks Policy reasons: if didnt have this rule, there would be too many appeals because it would be the only way to avoid issue preclusion. Effect of Appeal: If on appeal the court upholds both issues of judgment, both are conclusive judgments (issue preclusive). If on appeal the court upholds only one, then only the one is conclusive. *Note: so if you appeal a verdict where you lost for 2 reasons, you risk making one or both issues against you preclusive in a future case. 5. Case law: the party burdened with issue preclusion must have had adequate opportunity and incentive to litigate the issue in the earlier proceeding.

(c) Other Issue Preclusion Considerations:

Settlement? The settlement of an action by consent of the parties has no collateral estoppel effect because it was not fully litigated. Persons affected by? Generally only the actual parties to the first action can be bound by the finding on the issue. A true stranger to the first action cannot be collaterally estopped by the former judgment. Exceptions for privies, ie. successors in interest to real property, beneficiaries of trusts, indemnitors, etc.

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Katherine May A party who has never had an opportunity to litigate an issue cannot be precluded from doing so Issue preclusion can never apply if it will deprive someone of there day in court. Civil and criminal findings are not equivalent because they are found under different burdens of proof.

(d) Offensive vs. Defensive Use of Issue Preclusion:

Defensive Use: When a D seeks to prevent a P from asserting a claim the P has previously lost on against another D Offensive Use: Occurs when the P seeks to foreclose the D from litigating an issue it previously lost on with another party. General Rule with Offensive Issue Preclusion: in cases where a P could easily have joined in the earlier action or for other reasons allowing it would be unfair, a trial judge should not allow the P to use offensive issue preclusion. Trial judges have broad discretion in determining factors judge should consider (1) Offensive issue preclusion is not unfair (2) Current Ps could not have easily joined in first case (3) Ds had a full & fair opportunity to litigate the claims in the first suit Parklane Hosiery Not so if there wasnt a whole lot of incentive to defend suit 1, damages were low (4) Its just not fair to stick with the result in suit 1 (5) The reliability of the judgment - If there are disparate results the court should not have sufficient confidence in the result to apply issue preclusion State Farm

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Essay Question Fill Ins: Rule 4(k)(1)(a) allows a federal district court to exercise jurisdiction to the same extent as a state court of general jurisdiction in the forum state. The long-arm statute of ___(forum state) allows its courts to exercise personal jurisdiction to the full extent allowed by the Constitution. The issue for each subparts of this question is whether a _____(forum state) court may assert personal jurisdiction over the various parties consistent with the Due Process Clause. It is clear here that the International Shoe minimum contacts test is met. In the words of Hanson v. Denckla, ____(defendant) puporsefully availed himself to the privilege of doing business in _______(forum state) by ________(activity). ______(Ps) claim arises out of the activities that ______(D) directed at the forum state. There are no facts here which would make it unfair to subject _____(D) to the personal jurisdiction of ______(forum state). Under Worldswide Volkswagen and the plurality in Asahi, personal jurisdiction probably cannot be premised simply in the fact that _____(D) placed the _____(product) into the stream of commerce (a majority of the Court has never accepted the pure stream of commerce theory see recent McIntyre v. Nicastro case) Under the plurality approach in Asahi it would seem that there are not sufficient contacts to sustain personal jurisdiction over this claim. Even if there were, the majority opinion in Asahi suggests that assertion of jurisdiction would not comport with traditional notions of fair play & substantial justice. There is one difference between this case and Asahi the claims by ____(P) have not been settled but this would not seem enough to allow the assertion of jurisdiction. Substantive Law Erie problems It is clear that the ____ is part of the ____ (forum state) substantive law defining the rights and obligations of the parties. Therefore, under Erie and the early cases interpreting it such as Guaranty Trust, it would be enough simply to classify the ____(forum state) law as substantive or outcome determinative. Later cases such as Byrd suggest a different test however. Byrd also emphasizes that federal courts must honor state law creating rights and obligations. The ___ (state law) is precisely such a law, so it is possible to conclude that it must be applied without going on to the other tests proposed in Hanna and Byrd. Application of the more nuanced tests in Hanna and Byrd would lead to the same result, if applied. Byrd says that if state law is outcome determinative it should be applied in absence of a strong countervailing federal policy. There is no such policy here. Similarly, under Hanna, the court should look at the policies underlying Erie, prevention of forum shipping and inequitable results. If the ____ is not applied in federal court, Ps in diversity cases will surely shop for that forum.The court should therefore apply the state substantive law of _____(forum state). Issue Preclusion Under the test in section 27 of the Restatement (Second) of Judgments, when an (1) issue of fact or law is (2) actually litigated and determined by (3) a valid and prior final judgment and (4) the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties. Since in this case there is no mutuality, ordinarily issue preclusion would not apply. Nonetheless, in modern cases, such as Parklane Hosiery, the courts have allowed the use of offensive issue preclusion when (1) offensive issue preclusion is not unfair (2) the current Ps could not have easily joined in the first suit (3) D has received a full and fair opportunity to litigate the claim in suit 1 (4) it wouldnt be fair to stick with the judgment in suit 1 and (5) the results from prior litigation has led to disparate results.

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