civ pro outline campos fall 2010

8/3/2019 Civ Pro Outline Campos Fall 2010

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Joseph Roseme Civ. Pro. Outline DF- Scott Byers- [email protected]

20 QUESTIONS!:

1. Lawyer Role? (personal/professionalism)2. What are you asked to do? (how did you get retained)3.

Interview? (how do you counsel a client)4. Fact investigation? (how do you go about it)

5. Litigation Strategy? (theory of plan & proof)6. Remedies & Fees? (how do you get paid-5 ways)7. Affirmative Pleadings & Defense? (who do we name as parties)8. Forum Selection & Judge Shopping? (venue & judge choice)9. Subject Matter Jurisdiction? (SMJ)10.Personal Jurisdiction? (PJ)11.Choice of Law? (Fed or State Law)12.Negotiation Alternative Dispute? (settle or no settle)13.Pre-Trial Conference?14.

Discovery? (ask for Doc., questions, investigate)15.Pretrial Motions? (motion to dismiss-Rule 12, summary judgment-Rule

16.Trials? (how to run trial)17.Trial Motions? (motions during the trial)18.Post Trial Motions? (Motions after the trial)19.Appeals? (how, when, & what you can appeal)

1291-Can appeal after final decision1292-Interlockery appeal, you can appeal while case is still going on.

20.Judgment? (what is the binding order)y To begin an action you must file a formal complaint through Rule 3- Commencing an

Actiony The difference between filing & submitting is that filing is presented to the court clerk,

submitting is when you present it to the court.

y A pleading is a complaint, answer, & replyy A motion is an application for an ordery

***Federal Courts have 3 kinds of power:

1. Inherent Power2. Statutory Power3. Power that derives from Rule 16- which deals with Pretrial Conferences; Scheduling,

& Mgt. Section (F) also give the court the power to sanction. Rule 16 cross references Rule 37;

which deals with sanctions in the failure to make disclosures or to cooperate in discovery.

y Subjective reasonable is what you think is reasonable. Objective reasonable is what thecourt thinks is reasonable. As a defendant you want to drive up the cost of litigation toencourage settlement or abandonment of a case, but you have to make your delaysobjectively reasonable to not get sanctions.


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Remedies & Fees- 5 basic:

Compensatory (CD): The purpose of this remedy is to replace/compensate with monetary relieffor lost or harm done by another party. (Make person whole again) There is a 4 Prong Test:

1. Fair Market Value: this is the benchmark for the measure of value

2. Interim Use Value: the value lost between the time of the taking and replacement3. Replacement Costs: availability of substitutes in the area & their cost at the time of thetaking4. Mitigation: Person injured must take timely action to replace loss; Prudence Standard(act as a reasonable person), Timeliness

Cases

U.S. v. Hatahley- Action commenced to stop grazing, but before judgment was declared, the U.S.took livestock and sold them to a glue company.

o Sets Objective Standard for Determining Compensatory Damages:y Interim Use Value: Between time of taking and reasonable time of

replacement

y Mitigation of Damages: Prudence standard and timelinessy Market Value (at time of taking): Serves as a benchmark for measure of

valueo 1983 (Anti-Klan Act) Important Civil Rights Statute (was brought into Fed.

Crt. Through this, itestablishedaFed. Question under Article III byFed.

Tortclaim)

y Requires Wrongdoer to act under the color of law (pursuant to authority)y Deprivation of Civil Rights

Norfolk & Western Railway Co. v. Ayers- Jury damage awards may be awarded even if theplaintiffs have been exposed to asbestos by third parties and/or they have not yet developed

cancero Compensatory Damages may beawarded for fear ofdeveloping cancer. Held

thatfear offuture injury is cognizable only when accompanied by a concrete or

actual injury

Punitive (PD): meant to punish and deter a party from willful and reckless activity. Also provides compensation for things lacking replacement value. (Legal basis is through the 14thAmend.)GUIDEPOSTS FOR PD:

1. Reprehensibility- How bad is what they did?

2. Proportionality- How is award comparable to CD?3. Precedence/comparability- What is the difference between PD and statutoryfines/ordinance

Types ofAppellate Review:1. Denovo- Review everything because of potential constitutional violations that deal with the14

th& 5

thAmend.

2. Abuse & Discretion- Judge has a certain amt. of discretion he is allowed, has to stay in that.3. Clearly Erroneous- Judge can be really wrong just not completely misreading law.


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y Gore v. BMW- Creates 3 guideposts test to excessiveness of PD. (see above underappellate Review)

y Carey v. Piphus- Must show proof of injury to collect damages under constitutionalviolations; if not only nominal damages can be awarded (like $3)

y Browning v.Harris- PD is not cruel & unusual under 8th Amend. But excessive PDviolates the 14th Amend. Due process clausey State Farm v. Campbell- Affirms BMW; Supreme Crt. says that 145:1 ratio is excessive

under the comparability prong, suggests single digit factor instead (at the most 9:1). Alsocompanies cant be punished for harms done outside of State.

y Morris v. Williams- Does extreme reprehensibility prong trump other two guideposts?Supreme Crt. said no, they look to all three guideposts in PD test. The jury can look tothe reprehensibility of party to see if they want to award PD, but PD cant apply toeveryone, just that person suing, others have to bring own lawsuit.

y Baker v. Exxon- Established the 1:1 ratio for CD-PD only in Maritime cases, becausecompanies need to have predictability of what injuries will cost them. Why though

doesnt that defeat the purpose of PD?y Honda v. Oberg- An Oregon statute prohibited the review of PD. Supreme Crt. said that

is unconstitutional, PD must be reviewed.

y Feltner v.Columbia Pictures- Supreme. Crt. Held it was constitutional for State to forcejury to a set amt. of statutory damages with a max & min number.

y Haslip- Jury must be guided on issuance of PD because of constitutional implications.y Cooper v.Leatherman- Established that Denovo is standard of review for PD.

***Equitable Remedies are meant to put you back in the original position you were in

before the harm was done (Injunctions are the most common type of these).

Coke/Ellesmoredispute set the precedence thatequitycourt woulddefer to common law

court (which distributeslegalremedies). To beentitledto an equitableremedythe plaintiffhad to show that the legal remedy was inadequate & injustice would occur w/out the

equitableremedy***

Injunctions: requires parties to do or not do something; it can be complex & subtle or narrow &specific. Governed by Rule 65- Injunctions & Restraining Orders.3 Types of Injunctions:

1. Temporary Restraining Order (TRO): Comes before discovery You do not need other party present to obtain Have to show damage and injury are very imminent and that notice was either

attempted, unnecessary or too dangerous Valid for 10 days, unless extension is obtained

2. Preliminary: Need motion to obtain Must notify the other party and give them an opportunity to respond. Thus,

hearing is needed Obtain while the case is pending Court has discretion to order one or not


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y Important Move: might let evidence in sooner at a preliminary injunctionhearing which is bad for defendants and good for plaintiffs because itspeeds up or slows down the trial

3. Permanent: Granted after a final hearing on the merits Included in the pleading as a remedy

Writ Prohibition: instructs party to stop doing somethingWrit Mandamus: Instructs party to start doing something5 PRONG TEST FOR INJUNCITONS:

1. No adequate remedies at law- monetary cant sufficiently compensate & make partywhole again.2. Irreparable injury/harm- must be imminent/other party was cause of injury.3. Probability of success on merits- fair chance that evidence will prove case4. Balance of equity- harm to plaintiff outweighs hardship to defendant if injunction isnt

granted.5. Serves public interest- benefit to public if issued/ is there a foreseeable damage in thefuture.

William Inglis & Sons Baking Co. v. ITT Continental Baking Co. Holds that if potential harmto plaintiff is serious enough, only a fair chance of success needs to be shown forTRO.

Lyons v.City of LA(relates to DJ & is state action) This case was wrongfully decided, S.Crt.could have banned chokeholds. Held that damages will do because no irreparable injuries wereshown (plaintiff could not show it would happen again).

Norfolk v. Ayers- Fear of future injuries can only be won if accompanied by concrete & actualinjury.

(Most important to Buff. Creek) EBay v. Mercexchange- Created new 4 factor test for injunctionsby removing- Probability of success prong in original test.

Sigma Chemical Co. v. Harris- Awarded Perm. Injunction on a 3 part reasonable test (a)Protecting business interest (b) temporal scope (c) geographic scope.

NRDC v.Winter- Preliminary injunctions must show probable success on merits.

(Pay attention to Judge Posner imp.) Sara Creek v. Walgreen- Held that it is too complex tofactor damages under balance of harms prong in Injunction test.

Grupo Mexicano- Crts. Can issue TRO to stop corporations from dissipating (hiding/getting ridof) assets in an attempt to pay judgments.


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Declaratory: A declaration of a partys rights without any coercive relief, such as damages or aninjunction. It is governed by Rule 57- Declaratory Judgment.

2201: Gives you the procedure for obtaining a declaratory judgment. 2202: Allows you to attach declaratory judgment to other remedies

3 PRONG TEST:

1. Case/Controversy (2201) - has to be traceable to private or state action.a) Actual Injury- show there is an injury.b) Traceability- action connects somehow to partyc) Redressibilty- injuries can be compensated

2. Rights/ Relation- court is determining rights/relations of parties3. Interest- someone who must have been injured or have interest in the remedy (i.e.pierce corp. veil to get to deeper pockets)

***Declaratory judgment hasthe forceandeffect ofa final judgment. Importance: oncea

declaratory judgment is issued, it isappealable under1291as opposedto adenial which is

nota final judgmentand istherefore notappealable under1291 or under1292(a) ***

y American Machine v. Bothezat (private action)- A controversy does not need to beestablished before a court decides/ grants a declaratory judgment.

y Wilkinson v. Austin (state action)-y Medimmune v. Genotech (private action)- Declaratory judgment request must have

satisfy the case-or controversy requirement (sufficient subject matter to warrant legaladversity)

Provisional (PR):T

his is a relief pending final adjudication of a dispute. Its granted before acase is heard on its merits & based on incomplete info. PRs will be decided by judges. Fightthis though 14th & 5th Amend. Due Process Clause- (Pre-Seizure notice and hearing; must begiven the opportunity to be heard in a meaningful time and manner)

PRsare governed by Rule 64: Seizure of Person or Property:

o Purpose is to protect assets in order to be able to later satisfy judgmentso Can be pre-trial, trial, or post judgmento Can be used in public or private controversieso Way of maintaining status-quo

Freezing the relationship so that plaintiffs dont discover that defendant isjudgment proof

o Due Process Clause What is the meaning of property for purposes of provisional remedies?

y Tangible or intangible propertyo How do you know when a state was involved?

If federal agent was acting pursuant to a state law Private parties can act under the color of law when allowed so by the

applicable statute.


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Types of PRo Attachment: Taking custody of ones property to secure a judgmento Civil Arresto Garnishment: Making an attachment to someones wages to secure judgment or

make recoverieso

Liens: Asserting a legal right or interest in anothers propertyo Seizure: Taking of anothers property (as part of replevin or other action)o Sequestration: When tangible or intangible items are takeno Replevin: Action for repossession of property wrongfully taken; Plaintiff puts up

bond for item and officer seizes it from defendant so the plaintiff can hold it untilcourt decides issue.

5 PRONG PR TEST:

1. Private interest- claim party has to property.2. Probable value of safeguard (applies only to private) - might move disputed property3. Risk of erroneous depravation- prove theres basis for taking

4. Gov. Interest-5. Party interest seeking remedy-

y Mathews v. Eldridge- Deleted showing # 2 & 5 described above when involves a Gov.party.

y Fuentes v. Shevin- Requires hearing to uphold due process to uphold Provisionalremedies. The only time an outright seizure is allowed is: (a) when it is directlynecessary to secure a Gov. or public interest. (b) When there is a special need for promptaction. (c) A Gov. Official who is responsible to determine is seizure is justified must beinitiating the seizure.

Fees1985- Conspiracy fees, you can trigger a 1988 if you can prove civil rights violation.

1983 Color of Law/Anti-Clan Act- grants federal jurisdiction, subject matter jurisdiction. Theytrigger1988 claims. If you have a 1983 case then you are eligible to receive fees based off of1988 Provides fees in Civil Rights Actions (1983, 1985). Drafted in 1976: Makes it worth itfor attorneys to take these cases rights cases. Also creates incentive to bring Civil RightsActions.For lawyer to be able to claim fees:

1) You must be the prevailing party2) Pass the lodestar test- the benchmark for reasonableness (reasonable hours X the

reasonable rate). It gives 12 factors to see if party was successful & multiplier of fees iswarranted

American Rule-believes each side should pay its own costs and attorneys fees.

English Rule- one side takes all.

1915- informa pauperis- Federal Court may wave costs for someone who cannot afford to pay. Waiving Payments/Fees forFiling for Poor Plaintiffsfiling a FEDERAL lawsuit


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o Rotation in Federal District Court in order to get in forma pauperis must track therotation of judges or wheel system judges are picked at random

Get a TRO heard with an IFP and can track rotationy More useful strategically than wheel system because you can track

a judge that will be more sympathetic to your theory of case

o In determining if feesarereasonable: Lodestar (reasonable fees x reasonable hours) Risk Enhancement Multiplier Effect

o This is a waiver provisiono Petitions filed in Federal District Court that allow the waiver of a filing feeo Thisallows for Judge Shopping

There is a quick rotation of judges for cases requiring a waivery To get IFP signed, you can track rotationy Sometimes you can get yourIFP signed and your petition heard,

depending on the Judge (know the system)

2412- Equal Action to Judgment Acto Feeshifting statutethat onlyapplies in CivilLitigation againstthe USo Provides that unless a specific statute prohibits it, a court should award fees to a

party that prevails against the US, unless the governments position wassubstantially justified

o Getattorneys feesandcosts when the US isa partyandtheir position iseithersubstantially unjustified or because of bad faith conduct

Rule 68:- Defendant has up to 10 days beforethetrialto makean offer. If it isrefusedand

the offer is greaterthan the final judgmentthe Plaintiff hasto paythe Defendants

attorneys feesandcosts from thetime ofthe offer.

oPlaintiff must pay costs incurred AF

TER offer was made.

o This is not a fee-shifting statute. Defendant will only pay attorneys fees up untilthe point that an offer was made.

o The fact that an offer is made but not accepted does not preclude subsequentoffer. Encourages Defendants to make settlement offer and Plaintiffs to look atthe offer.

Cases:

Merrick v. Chesney-offer of judgment case; and jury gave less so they could not collect fees.Shows how rule 68 works.

Buckhannon- court rejected the catalyst theory and stated that throw in the towel case is alright

and dont have to pay fees. Either needs a consent decree or judgment to get fees

Evans v. Jeff D- Ok to include in a settlement agreement to have a waiver of fees.

Allyeska- no common law doctrine for fee shifting but it is up to legislature to allow it. Confirmsthe American Rule. 1988 fees enacted one year after the case by the legislature.


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Hensley v. Eckhert- shows the lodestar test. Footnote 3 says they will look at how young theattorney is to see what the reasonable hours is. How outrageous is the bill? If you win on 5 outof 6 claims you only get fees for 5 out of 6.

Arlington v. Murphy- parents of a disable child prevailed in an IDEA lawsuit. They moved torecover fees for experts. Non-attorney expert fees for services rendered are not costs under thefee shifting acts. This applies to IDEA lawsuit only.

Sole v. Wyner- winning a preliminary injunction does not make you a prevailing party.

Travelers v. Pacific Gas- court will uphold fee shifting written into contracts.

Richlin- a prevailing party that satisfies the EAJA may recover paralegal fees at the prevailingmarket rates.

Pleadings & Pretrial Motions Purpose: To give other parties notice of whatclaimsanddefensesare being raised/statetherelevant facts. Pleadingsshould beconcise,simple,

& direct

Pleadings: Complaint, Answer, Reply, Surreply. Deals with mainly Rules 1-25, mainly 11, 7, 8,9, 10, 11, 12, 15, 50, 52, 56, 59 1927- Any attorney that unreasonably multiplies the proceedings of the case to increase costsshall be subject to sanction for all costs of the trial as ordered by a court.

Theory ofModern Pleadings: Want to give the other side notice of relevant facts. Gives theplaintiff the first official opportunity to tell his or her story and gives the defendant a chance for aquick, inexpensive victory.

Pleadingsaredifferent from motions which arean application foran order.

Rule 7: Pleadings Allowed,Forms ofMotions

If Defendant makes a Rule 12 motion against the complaint and loses, hehas 10 days after the court denies the motion to answer

Pre-Answer, Pre-TrialMotionsy Rule 12(b)if granted, either delay or end lawsuitgiving the

defendant either temporary or permanent victory at an early stagein the proceedings and cheaplyfew facts are involved, all of

which are decided by judge and some law books.

y Rule 12(e): Motion for a more definite statementy Rule 12(f): Motion to strike

Kinds of Pleadings:o Complaint: Begins the lawsuitPaper filed by the plaintiff specifying all claims

against the defendant. Must do 2 things:

y Invoke (at least by reference) a body of law i.e. negligent operationof vehicle

y Sketch a factual scenario that, if shown to be true, falls within thatbody of law


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Contents: Rule 8 (exceptions in Rule 9)

y Shortstatement of grounds for jurisdictiony Shortstatement oftheclaim showing pleader isentitledto

relief

y Demand for judgment forrelief Plaintiff wants to keep the statement short so that the defendant does nothave a ton of information that can be used to dismiss the case. They are

trying to protect their right to get to discovery. Notice invokes due process clause

Answer: Paper filed by the defendant responding to all of the plaintiffs claims and filesany counterclaims

Defendantanswers with ashortstatement because they do not want tonail down a theory of defense

Must respond to allegations of complaint within 20 days of service ofprocessdefendant can either make a motion or answer (Rule 12)

y Cases that survive a Rule 12 motion to dismiss are likely in for thelong haul and have higher settlement values because theyre in theright court, there are no glaring procedural defects, and it is bydefinition, a case about disputed facts.

Denial

y Failureto deny istreatedasan admissiony In most cases, defendant denies many of the allegations

o Rule 8(b) requiresdefendantto deny onlyallegationsthat he willdispute

o Rule 8(d) providesthatany otherallegation that is notdenied isdeemedasadmitted

y General Denial: denieseveryallegation ofthecomplainto Court condemn casual, blanket denial because they requireparties to spend needless time ferreting out the real items in

dispute

o Defendant who enters general denial could be subject toRule 11

y Raiseaffirmative Defenseso Injecting a new fact that show the plaintiff cannot win: rule

8(c)o Different from denial

o Reply: Plaintiffs response to the defendants answer Allowable when:

y Answer contains a counterclaimy By order of the court

Pre-AnswerMotionso Defendant may raise certain procedural issues by motiono Alternative to answering a complaintentirely optionalo FatalMotions: Lack of SubjectMatter Jurisdiction (12b1),Lack of Personal

Jurisdiction (12b2), Improper Venue (12b3),


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o CurableMotions: Dismissal is notrequired butthey needto beremediedInsufficientservice of process (12b5),Failureto Join an Indispensable Party

(12b7)

Motions: A request to the court for an order. All requests to a court other than acomplaint, answer, and reply are made by motion rather than pleading.

oIf defendant makes a Rule 12 motion against the complaint and loses, he has 10days after the court denies the motion to answer

o Rule 12(b)(6) failure to state a claim on which relief can be granted. The plaintiffmay amend the complaint if you left something out.

o 12(g) and 12(h): If you do not raise 12(b)(2-5) immediately, you waive your rightto raise them.

Rule 7: Pleadings Allowed;Forms ofMotions: Providesthata partyseeking any form of

relief from act willask forrelief by motion.

o Pleadings: complaint, answer, replyo Motions and Other Papers

An application to the court for an order shall be by motion, which shall bein writing, state the grounds, set forth relief sought and be signed (Rule11)

The rules apply to all motions All motions shall be signed in accordance with Rule 11

o Demurrers, Pleas, Etc, Abolished Replaced by Rule 12(b)(6)so what

Rule 8: General Rules of Pleading

o 4 Important Aspects: Shortand Plain statement, Jurisdiction, Claim forrelief, Demand for Judgment

o Top Down Cause of Action: Constitutional, Federal Statutes, Common Lawo (a) Claims for relief: All claims shall contain a short and plain statement showing:

(1) Statement of courts Jurisdiction (Subject Matter and Personal) (2) Statement of Claim showing pleader is entitled to Relief (COA) (3) Demand for Judgment (for the relief the pleader seeksthe plaintiff

must specify the remedy he like the court to grant: Can seek alternateforms of relief. Prayer nonbindingCourt is not limited to the remedy(Rule 54c) i.e. Lyons v. La)

o (b) Defenses; Form of Denials: A party shall state in short and plain terms thepartys defenses to each claim asserted. When a pleader intends in good faith todeny only a part of a qualification of an averment, the pleader shall specify somuch of it as is true and material and shall deny only the remainder. The pleadermay do so by general denial subject to the obligations set forth in Rule 11.REQUIRES DEFENDANTS TO DENY ONLYTHOSE ALLEGATIONS HEDISPUTES

o (c) Affirmative Defenses: Concedes that the facts as presented by the plaintiff arecorrect but alleges additional factors that relieve defendant from liability

Defendant has burden of proving and pleading an affirmative defenseo (d) Effect of Failure to Deny: Failing to deny an allegation in the complaint or

filing an ineffective denial is treated as an admission. ANY ALLEGATIONTHATIS NOT DENIED IS DEEMED AS ADMITTED.


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General Denial: An allegation that denies every allegation of thecomplaint. Condemned by court because they require parties to spendneedless time ferreting out the real items in dispute. May be thrown out byRule 11

o (e) Pleading to be Concise and Direct; Consistency:

(1) each averment of a pleading shall be simple, concise, and direct(abolishes common law form of pleadings) (2) Alternative and Hypothetical: A party may state as many separate

claims or defenses as they party has regardless of consistency (may havemore than one COA)

y Example: Defendant denies entering into a contract with a plaintiffand asserts that she kept her side of the bargain at the same t ime.

y Why?o Pleadings come early so attorney sets forth possible

versions of law and facts that appear plausible.o Allegations in pleadings tempered by burden of proofo

Lawyer will settle on 1 version by the time the case comesto trial.

o (f) Construction of Pleadings: All pleadings shall be construed as to do substantialjustice

Rule 9: Pleading SpecialMatters

o (a) Capacityo (b) Fraud,Mistake, Condition oftheMind: In allaverments of fraud or

mistake,thecircumstancesconstituting fraud or mistakeshall bestated with

particularity.

i.e. General allegations that defendant fraudulently caused plaintiff to signa contract is insufficient

Plaintiff needs to describe in detail representations made by defendant andhow they were incorrect.

y You need a lot of detailsy Typically dismissed with prejudice (Dismissed with prejudice-after

adjudication on the merits barring the plaintiff from prosecutingany later lawsuit on the same claim)

y Does not apply to 1983.Rule11: Governstherequirements for filing complaints in federalcourts

o Attempts to ensure truthful and good faith pleadings. The party or partys attorneymust sign all pleadings and motions

o (a) Signature Each document must be signed by at least one attorney Must have address and phone number Do not need affidavits

o (b) Representations to Court: By submitting any document to court, the signingparty is certifying that:

(1) Not being filed for an improper use (2) Legal contentions made in it are warranted or supported by existing

law


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(3) There is evidentiary support for the claims made in the document (4) When you deny another partys complaint, it can be supported by

existing evidence Revisions/Advisory Notes

y Factual basis need not exist, as long as you believe it will afterdiscovery

y If no evidence can be found, just informally adjust your complaintaccordingly

y No existing lawcan argue for a new law, a modification or anextension of it in order to satisfy (b), but it must have support fromoutside sources.

o (c) Sanctions: Can be imposed upon the attorney who submits a document thatfails to comply with the above 4 requirements.

(1) How Initiatedy (a) By Motion

o Opposing counsel makes a complaint to counsel inviolation

o States part of document that is in violationo Have 21 days to fix violation (safe harbor period)o If they dont change in 21 days, file motion with the courto If counsel is found to violate Rule 11 the winning party is

awarded reasonable attorney fees and law firm is heldresponsible for the violation

y (b) Court initiativeo Judge can claim that counsel has violated the requirementso Counsel must prove to the judge why they are not in

violation of the rule

(2) Nature of Sanctions; Limitationsy Intended to deter repeating the conduct by others who make the

same mistakes

y Notes:o B and C were intended to get counsel to carefully consider

the documents they chose to file with the courto Threat of sanctions emphasizes frankness when and if

attorney refuses to correct the violation, even after theargument is no longer defendable.

o Must use a Show Cause Order to impose a sanctionallowing for the counsel to remedy the problem before

imposing a sanctiono Court has a lot of discretion in determining the appropriate

sanctiono (d) Inapplicability to Discovery

Subdivisions A, B, and C are not applicable to motions related toDiscovery or Disclosure that are subject to provisions in Rules 26-37

Rule11 isservedand not filed. There isa 21daysafe harbor period


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o The problem with this 21 day safe harbor period is that is forces an attorney tomake a strategic judgment between filing a Rule 11 motion or a Rule 56 motion,or both.

If a Rule 11 motion does not work, try 12(b)(1-7)o If you dont raise 12(b)(2-5) at the beginning of the case you waive the righto

12(b)(1) is a constitutional requirement so it may never be waivedo 12(b)(6) is never waived because it takes up the courts time to leave a case that is

not going anywhere (efficiency argument) Rule 56: Summary Judgmenthave the case thrown out or decided right now, before

trial. Rule12: Defensesand ObjectionsWhen and how Presentedby Pleading or

MotionMotion for Judgment on the Pleadingso (a) When presented:

(1) shall serve and answery (a) Within 20 days after being served with the summons and

complaint

y (b) If service of the summons has been waivedwithin 60 days inthe U.Sor within 90 days outside the U.S. (governs both originaldefendants options in responding to a complaint, but also those ofother defendants parties, i.e. counter-claims)

(2) a party served with a cross-claim shall serve an answer within 20 days (3) (a) the US shall serve an answer within 60 days

(b) an officer or employee of the US shall serve and answer within 60

days

o (b) How Presented: the following defenses may at the option of the pleader bemade by motion

(1) Lack of SMJ (no power to render valid judgment) (2) Lack of PJ (No power to adjudicate the claims)

(3) Improper VENUE (couple with 1404change of venuemotion)(AKA: B3 Motions)(Case brought in wrong court)

(4) Insufficiency of PROCESS (summons and complaint)(Manner inwhich complaint was served)

(5) Insufficiency of SERVICE of process (6) Failure to state a claim upon which relief can be granted (so

what)(Before dismissing, court will almost always grant plaintiff leaveto amend the complaint to allow it to cure the defect.) Howell & Conway

(7) Failure to join a party (Rule 19) (2 prong analysis: 1. Relief 2.Prejudice)

o (c) Motion for Judgment on the Pleadingso (d) Preliminary Hearingso (e) Motion for More Definite Statement: within 10 days (complaint is so unclear,

defendant cannot meaningfully respond) Useful to noticerarely invoked!

o (f) Motion to Strike: within 20 days (Portions of pleadings that are redundant,immaterial, impertinent, or scandalous)

o (h) Waiver of Preservation of Certain Defenses


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Rules 12(b)(1, 6-7) are the only ones which are NON-WAIVABLE (3) Court may raise question of jurisdiction sua sponte (on its own) at any

time. Never lose right to raise 12(b)(1) because if the court does not have jurisdiction, the do

not have constitutional competency to hear the case.

Rule15 governs Amendments- Amended Pleading: Pleading that replaces an earlier pleadingand contains matters omitted from or not known at the time of earlier pleading

Plaintiff must show prejudice to prevent the amendment and Burden of production is on party opposing amendment to show prejudice

y Court can allow for amendments after 20 days if justice so requiresRule 42(b): Separate Trials-in order to avoid prejudice or to further convenience, expedition, oreconomy. Also increases costs for plaintiff

Court uses Rule 15(a) to say there is no prejudice and Rule 42(b) to severthis issue from the initial claims

Rule 42(a): Allows consolidation of trials

Rule 52- deals with bench summary judgment

Rule 50- deals with jury summary judgment-allows a judge to take away jury verdict andemploys his own. Your asking the judge to give a directed verdict

Rule 56- Is the big kahona of 52 and 50 combined

Rule 59- This is a motion for a new trial, says that affidavits must be supplied along with motionfor new trial. You must show court error.

Sanctions- Comes from:

1. Rule11 (source of monetarysanctions)2. Rule16 which then ties into Rule 373. 28 U.S.C.19274. Inherent powers ofthecourt5. Contempt: 2 types

a) Civil- Standard of proof to show liability = Clear & Convincing its a highstandard of proof because of the implications it holds to the companies. If

liability is found then Comes in Damages whose standard of proof=

preponderance ofevidence (haveto win 51%)

b) Criminal- Standard of proof forthis is beyondreasonabledoubtBurden of Production- this is a lowered threshold, have you met the required production to get itinto the fact finder (i.e. judge)?

Burden of Persuasion- Higher threshold, under whatever standard a court is operations under,you must meet that standard


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Cases:

Haddle v. Garrison (at will employee) - case about 1985 claim (which involves civil rightsconspiracy. Under1985 you must show conspiracy so you can show cause of action) 1985

fees trigger the 1988 fees.Holding: Loss of employment can satisfy injury to person or property that is required in order forrelief to be granted under1985.

Conley v. Gibson- Creates test for 12(b)(6) motion:Ties in with RULE 81) Assumes all allegations are true2) Construe facts in light most favorable to the plaintiff3) Verbatim- case should not be dismissed for failure to state a claim unlessplaintiff cant state a case beyond reasonable doubt.

Dura v. Broudo: Affirms rule 8 (low pleading standard). Here the plaintiff must still showsome

indication of economic loss & casual connection between fraud & loss.

BellAtlantic v. Twombly (monopoly of phones): Statute that applies more than bare assumptionfor conspiracy/ parallel conduct unfavorable to competition. It takes the short and plain statementof Rule 9b to a higher standard. Courts want more factual matter to show entitlement to relief. Itwants to make a distinction between feasible and plausible.Is this just for this specific case?...Does it raise bar for rule 9b?...does it apply to all conspiracycases?Tele Av- PLSRA Act says that a prisoner must plead with particularity in private security actions.Its the same standard ofStratfordunder heightened pleadings acts under 9(b).

Stratford-This shows and confirms Rule 9(b) which states in alleging fraud or mistake a partymust state with particularity the circumstances causing the fraud or mistake. The plaintiffscounterclaim for fraud was insufficient.

Gomez- Plaintiff does not need to allege bad faith on part of the defendants under1983 claim.You just need to show the following for1983 claim- (Only applies to entities acting under thearm of the state)

1) Person was acting under the color of law &2) There was a depravation of Constitutional and federal rights

Harlow- Reasonable test for qualified immunity. The court defined good faith as objectively

reasonable (which means what the court thinks is reasonable) to test defendants actions.

Richardson (private prison guards case)- Private prison guards are not entitled to qualifiedimmunity because they are not an arm of the state. (Funny) the court refuses to give immunity toprivate prison guards even though if they are doing the same action as state guards, the court saysthey are not a STATE ACTOR.


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Wyatt- Shows Richardson claims only work one way. A private prison guard is not entitled toqualified immunity because they arent a state actor, but they can be brought into federal courtfor doing a state action.

Pope (hitching/ fair notice case)- held that your only entitled to QF immunity if your actions did

not apply to established law that a reasonable person should have known. Here they said theguards were on notice from previous 11th Cir. Decision that hitching was not allowed.

Freu (federalist issue)-State cant sign voluntarily in a consent decree then try to allegeimmunity when opposing party attempts to enforce that decree. Enforcing the consent decreedoes not violate the 11th amendment.

Breusau- here it questions whether the right in question was clearly reasonably established.Would it be clear to a reasonable officer that conduct was warranted?

Holding: It was not particularly established that a police officer violated the 4th

amendment

deadly force standards by shooting a fleeing suspect=> so therefore the officer got QF immunityunder suspects 1983 action of excessive force

Chatam County (drawbridge case)- county and operating of drawbridge over navigable waterswasnt entitled to sovereign immunity because they werent acting as an arm of the state for 11thamendment purposes.

Scott v. Harris (bad guy driven off road)- An officer can judge potential harm to other innocent people and drivers in determining if he should drive a suspect off the road. The Officer wasentitled to QFI and summary judgment here.Leatherman- Preserves rule 8. No heightened pleading standards in 1983 suits.

Swikeritz- Re-affirmsLeatherman in an employment 1983 suit.

Pardus- specific facts arent necessary in pleading. Statements only need to give defendant fairnotice of what claim is and grounds upon which it rests.

Jones v. Block- exhaustion is not required for a 1983 claim. But it is required under the PLRA.It isnt up to the plaintiff to plead the exhaustion; rather it is up to the defense to use exhaustionas an affirmative defense.

It allows Rule 8a (short & plain statement) to apply to prisoners

Walker v. Northwest- attorney is sanctioned for improperly filing a lawsuit. Claimed 1332diversity & there were no grounds for it (lawyer didnt do HW, court held it was not the courtsjob to do the HW for the attorney) The court granted 12(b)(6) motion to dismiss under lack ofsubject matter.

Christian v. Patell (Barbie doll) Courts had enough to sanction lawyer under Rule 11, but courthad no right to sanction for actions outside of pleadings. (The court could later get him for


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sanctions under1927- any lawyer who unreasonably raises the cost of trial is liable for thosecosts)

Kuykendall- 10th circuit case. In a contempt action for contemporary civil sanctions, a jury trial is

not required. Damages just need to be proven on preponderance of evidence. Liability on clear &

convincing evidence.

Zalinski (bad faith was found here)- If defense makes an ineffective denial of part of thecomplaint and knowingly allows plaintiff to continue to rely on facts that are stated on thecomplaint and then the statue of limitations run out; the court can use equitable powers to estopethe defense from denying he owns forklift.

Broad: Courts will hold you to whatever you caused/allowed plaintiff to rely on.

Aquaslide (good faith was found here) - Held that it is up to the discretion of the court inallowing leave to amend under Rule 15a It is up to the non-movant to show prejudice (partyopposing amendment)

Laymans- held that defense must plead any affirmative defense in the complaint if you dontuse them you lose them Here the defendant tried to introduce affirmative defense at trialconcerning an easement to the property.

Moore v. Baker- in order for a claim not to be barred by SOL (statute of limitations or shit out ofluck) it need to arise out of:

1) Same conduct2) Same transaction3) Or same occurrence

As the original claim in order to relate back under Rule 15c. The court found that there were 2errors that occurred at 2 diff. times: pre-surgery (doc doesnt give enough info of proceedings)Negligence (doc messes up during or post surgery)

Rule15c- Relation cannot be granted if:

1) Requiresdifferentset of facts

2) Factsallegedconcern differenttime frames

3) Conduct wasseparate & distinct

Bonner (basketball case)- Court believes even though legal theory has changed, the new claimarises out of same nucleus of operative facts as the original complaint. The court allowed theamendment because it did relate back because the CounselorMalpractice & Negligence of

bballcourt maintenance was from the same nucleus also1) Court said plaintiff showed know bad faith2) There was no sufficient showing or the required negligence by defense.

Nelson v. Adams (cell phone case)-This was a procedural due process case on notice & hearing.Nelson has to be given notice and opportunity to respond and contend to the fee award that itinvolved personal liability (his assets were put at stake without his knowledge) after he wasmade party and before judgment was rendered. Rules12 & 15


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Mayle v. Felix- this is a very formal reading of 15c. Petitioners tried to amend petition filed after1 yr. federal habeas corpus (means show me the body of person being charged) limitationsperiod. Court held that it did not relate back.

Defendant said that its courts rights had been violated when: statements that were made

during a pretrial interrogation was allowed as admission in court.

Suitors Dissent (teacheragrees) he said it goes against the ideas behind habeas corpus writs.He said the system is set up so prisoner cant get attorney until after grant of habeas corpus isgranted thus allowing important things to be missed by lawyer (because he has such a short timeto prepare) and thus eliminating those important things because of SOL.

discrepancy between the rich and the poor

Judge Jury-The reason you want a jury verdict over judge directed verdict is because it takesaway the question of fairness. Also the idea of efficiency comes into effect.

Rule 50- allows a judge to take away jury verdict and employs his own.Y

oure asking the judgeto give a directed verdict.

Rule 56- You must establish that there is no general issue of fact2) Must establish the moving party was entitled to judgment as a matter of law

Rule 59- You are asking for a new trial here.

Hypo-1/1/07: A trial begins 1/1/09: Trial ends and the defense moves for directed verdict 1/3/09Jury Decides verdict 1/4/09: Judge removes jury verdict and grants directed verdict

At 1/1/09 the judge would have made a decision. But he would allow it to proceed to a juryverdict because he is giving the benefit of doubt the jury will reach the same conclusion as himand also it will look better. But should the same decision not be reached he can reverse it back on1/4/09. If on appeal the case would not have to be retried as a whole because the judge hadalready decided on 1/1/09 and it would be as if the jury never ruled

Adicus: lower court should not have granted summary judgment because moving party didntprove facts cant go to trial.

Celetex- (aspectice case) shows rule 56 summary judgments are easier because there is no lights

more favorable. There is the idea that 12b6 is so early on you no discovery but Rule 56 islater on so by then you have more facts and concrete grounds to base on.

It Held that in order to show Prong 1 of Rule 56 (must establish there is no general issue of fact)the moving party does not have to negate the claim they just have to show absence of evidence tosupport non-moving parties claim


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Bias (Celtics)- the issue was surrounded by an insurance policy. This case held that Prong1 underrule 56 must be proven then => the burden shifts to the non-moving party to prove there isenough facts to the Prong 1

The policy: friends are believable more then parents and there would be no insurance forcokeheads.

Jones v. Clinton (follows Celetex) the claims were: 1) Title 7- SMJ 1331: sexual harassment youcan bring 2 claims: A- Quid Quo Pro (this for that) B- Hostile work environment

2) 1983- SMJ 13313) 1985- SMJ 13314) State Claims- 1367 (allowed state claimsto be piggybacked w/Fed. Claims)

In this case a domino effect was created. When you knock out (1) you knock out all the claimsuntil you are only left with (4). So without (1)-(3) you have no Fed. Jurisdiction so the case mustbe dismissed to try in State Court because you would lose your 1367.

Mastotish?- Held the burden shifts to non-moving party on (1) of Rule 56. The non-moving partymust show there is more than a metaphysical doubt & show there is an actual rise of facts

Anderson v. Liberty Lobby-In evaluating nonmoving party assertion of (1)56, Court must drawall justifiable inferences in favor of nonmovant.

Jennings (UNC Soccer) affirms the above case: Court said that sufficient evidence was given toraise triable questions of facts of all disputed evidence of her Title 9 claim. This case wasdecided Embank: (every single judge in that circuit would sit in and decide the decision)

SubjectMatter Jurisdiction this arises under 12(b)(1) and cant be waived. Constitution

competence that arises under Article III sect. 3. Congress can restrict federal court jurisdiction(ex. 1332 and its $ requirements for jurisdiction)

y The powerto adjudicateacertain kind ofcontroversy. Therearetwo basic kinds ofcontroversies over which the federal judiciary hassubject matter jurisdiction:

federal question anddiversity.

o Concurrent Jurisdiction: federal courts share jurisdiction with state courts: 1331(federal question statute) and 1332 (diversity jurisdiction) can be brought ineither court

Helps shape vertical forum shopping Reasons for seeking federal court rather than state court can be mundane

(federal courts have shorter waiting time), strategic (more sympathy from

local judge, six person jury better than 12 person jury), and crafty(opposing lawyer uncomfortable with the more formal conduct of federallitigation). Also, Article III1 gives federal judges lifetime tenure toshield them from political pressure so a litigant with a strong butunpopular claim or defense might prefer a federal court.

Considerations for Federal Court:y (1) Availability of favorable lawChoice of Forum and choice of

law considerations, (2) More favorable procedure including


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evidentiary, (3) Cost and geographic convenience, (4) Issues oflocal bias i.e. jury bias, (5) Enforceability of remedies, (6)Appellate procedure (timing, etc.), (7) Tactics and strategy ofhanging onto forum

o Exclusive Jurisdiction: cases only to be brought in federal court

Admiralty, bankruptcy, antitrust, patent and copyright, etc.o Article III,2: limits federalcourts jurisdiction to thelistset forth in 2.

Concerns courts competenceo No general power was given to federal courts to entertain claims based on federal

law until after the Civil War reshaped understanding of federalism and the federalcourts role in the enforcement of civil rightsLed Congress in 1875 to enact ageneral federal question statute, i.e. 1331.

o Language of1331closely parallels Article III,2: Districtcourtsshall haveoriginal jurisdiction ofallcivilactions ARISING UNDERthe Constitution,

laws, ortreaties ofthe United States

o Article III,2 gives federalcourtsauthorityto hearcases

Article III does notrequirecompletediversity but1332 limits ArticleIII

o Issue of jurisdiction can be raised at any time with Rule 12(h)(3)o In judging jurisdiction, courts look to 3 bodies of law: Constitution, statutes

conferring jurisdiction, and the case law interpreting both.o 2 Constitutional claims: FACIAL and APPLIEDo Most common types of civil cases filed in federal court: cases that arise under

federal law and cases between citizens of different states.

y Federal Question: 28 USC 1331o 1331: Thedistrictcourtsshall have original jurisdiction ofallcivilactions

arising underthe Constitution,laws, ortreaties ofthe United States

oMust appear as part of the plaintiffs cause of action (complaint)

cannot comeup as a defense, counterclaim, or in anticipation of a defense

o Vertical forum shoppinglook for availability of favorable lawo Corresponds with Rule 12(b)(1): Motion to dismiss for lack of subject matter

jurisdictiono Arising Under jurisdiction can be challenged by attacking either:

Claimthere is no federal claim, and therefore no federal jurisdiction Jurisdictionthere is no jurisdiction because there is no claim arising

under federal law Party arguing against jurisdiction could use a 12(b)(1) or (6)

o Well-Pleaded Complaint Rule: The arising under language in 1331requiresthe plaintiffto presentthe federal question on the face ofthe

plaintiffscomplaint.Morethan just including a federal issue in the

complaintrequiresasking whetherthe federalelement is necessaryto the

plaintiffscase.

Plaintiffs often fail to meet rule when a complaint both asserts a state lawclaim and mentions a federal defense to that claim.

Federal question must appear as part of the plaintiffs cause of action(complaint)cannot come up as a defense or in anticipation of a defense


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o Burden of demonstrating jurisdiction resides with the party seeking removal.o Amount in controversy does not matter as long as there is federal question

Motley (free train) well pleaded complaint rule coming from 1331. It held that it is the plaintiffsburden to plead that there is a federal question on the face of the complaint and not that it will

arise out of an anticipated defense.

Holmes- Held that counterclaims and answers cannot give answers to needed jurisdictionalrequirements of 1331.

Arbaough- (moonlight caf) Holds that title 7 threshold requiring at least 15 employees is notneeded to have SMJ. It said congress never said you must have 15 employees to have SMJ. Thiscase looks like courts BENT SMJ to hear the case.

Marcum v. Allen- Federal Courts can hear bankruptcy proceedings as long as the court does nottouch the probate issues (which is an exception to 1331- court doesnt want these petty issues)

Akinbrine- Suits for divorce, alimony, child custody falls outside of diversity jurisdiction even ifspouses were from different states when it begins.

Rivet- uses ideology of Motley (well pleading rule) Held that preclusions claim is deemed as adefense so it cant have SMJ under 1331.

Party

Riley PPB-Mass Inc-Mass

Beatrice PPB-Illinois Inc-Delaware

Cryovac PPB-Mass Inc-S. Carolina

Grace: PPB-NY Inc-Conn

Anderson: In General-Mass

Prince: In General -WVA

Buffalo Mining: PPB-WVA Inc- WVA

Pittston: PPB- NY Inc-Delaware

Complex FRCP game (usechartaboveto makesense): Ifyour princeandyou wantto go to

Fed. Crt.- If prince justsues Pittson you would havediversity under1332 so you can get

into Fed Crt. To keep it in State court Pittson would use a 12b7 to say you must add

Buffalo mining. Because buffalo is from thesamestate then they wouldask fordismissal

under12b1 fortheFed Crt.

Strawbridge- (complete diversity) in a case with multiple parties the existence of a single partywith the same state citizenship with one member of the opposing party will destroy diversity.


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Redner- plaintiff was a US citizen residing in France. Here the crt. Said since he wasnt a UScitizen that intended to stay in France under 1332 a2 he would be a citizen not just a resident of aforeign state to get it into federal court and dismissed under 12b1

Saddah- Citizenship is measured at the time of filing. The one party became a citizen after thesuit was filed. Aliens do not fit 1332 requirements. Aliens cannot sue each other in US fed Crt.

Because 1332 was created to narrow not broaden jurisdiction. Another issue is that 1332 was notintended to allow aliens to use and shop whatever US laws are favorable to them.

Ruhrgas v. Marathon- There is no jurisdictional hierarchy courts can look at SMJ(12b1) orpersonal jurisdiction (12b2) first. Whatever is institutionally efficient is what they will go with.Rationale= if there is no jurisdiction there is no jurisdiction who cares which one comes first.

Red Cap- dismissal based on amt. of controversy requirement must be based on the face of thecomplaint. So therefore it is the ptiffs burden to show on the face that the amt. of controversy ismet. (if the crt. Can determine with legal certainty that the plaintiff cannot recover the amt.claimed the suit must be dismissed) or the def. can challenge and must show that the amt. ofcontroversy is not being met

Ford/Citibank v. macully- Crt states that the cost of compliance with an injunction cannot beused o satisfy the amount in controversy requirement for 1332 purposes. Crt also says a claimfor PD cannot be aggregated to satisfy the amt. of controversy of 1332 because they are tooabstract.

Lincoln property v. Roche- it is not required that the named def. as a removing party (under1441) have to negate the existence of a potential def. whose presence in the action will destroydiversity. Also says existence of a speculative def. is unimportant for the purposes of diversity.

Schimdt- national banks are citizens of states where their main office is.

Supplemental Jurisdiction1367o Jurisdiction overaclaim that is part ofthesamecase orcontroversyas

anotherclaim over which thecourt has original jurisdiction. This broadens

federal jurisdiction becauseastateclaim may be bootstrapped with a federal

claim..

o Originated in case law and has recently taken statutory form: StatutoryJurisdiction

o 1367 (a) district courts shall have supplemental jurisdiction over all other

claims that are so related to claims in the action within such originaljurisdiction that they form part of the same case or controversy under

Article IIIy Idea that new parties and claims to a lawsuit may not have to

independently satisfy SMJyou can piggyback a state claiminto federal court via 1331 (also through Rule 18)

y Allows court to hear non-diversity, non-federal claims.y 1331 claims and state claims get aggregatedy Supplemental jurisdiction includes claims as to parties that come

under Rule 20(a) (Permissive Joinder of Parties)


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(b) Cannot have supplemental jurisdiction over claims by plaintiffs againstpersons made parties under

y Rule 14, 19, 20, 24y Only kills supplemental jurisdiction over claims by plaintiff in

diversity cases.

y Class actions are missing (Rule 23) (c) Decline to exercise supplemental jurisdiction if(ways to kick outopposing partys claims)

y (1) Too novel or complexy (2) State claim predominatesy (3) Already dismissed all claims of original jurisdiction

o Federal question already dismissedy (4) Exceptional circumstancescourts discretion

(d) When claim is dismissed, party has 30 days to refile or the remainderof the Statute of Limitations, whichever is longer.

y Tolling provisiony Jinks1367(d) violates 5th Amendment

o Defendant would file Rule 12(b)(1) under1367(c) to try to kick out state claimsfrom federal court

If granted it is dismissed and you cannot bring it again Remand comes from 1441 removal

o Defendant would file Rule 12(b)(6) to try to kick out federal claimso Policy behind1367

Efficiency Fairness Convenience Cost

o 1367 approves result of Gibbs and codifies many of Gibbs factors.o 1367 says you may not have pendant party jurisdiction if it destroys full

diversity You can have pendant parties with state law claims in federal question

caseso Get federal question through 1331Get state claim in through 1367a (same

case or controversy)o Ancillary Jurisdiction: Defendant with counterclaims, cross claims, or third-

party claims may bring them in federal court as long as federal court hasjurisdiction over the original claim

o Pendant Claim Jurisdiction: Plaintiff with valid federal question claims maybring along state-based claim in Federal Court.

Must derive from common nucleus of operative fact Up to courts direction whether to hear pendant claim based on

considerations of judicial economy, convenience and fairness to litigants.o Pendant Party Jurisdiction: Plaintiff with valid federal claim against one

defendant may bring state-based claim against second defendant over whom noindependent basis of federal jurisdiction exists.

Can add in federal question cases but not in diversity cases


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o Application of1367 is a 2-part process: (1) Determine if state and federal claims have a sufficient factual

relationship to qualifywhether the 2 form part of the same case orcontroversy under Article III.

y Arise out of the same set of factstypically involves samewitnesses, evidence, etc. Claims stem from same coretransaction/occurrence

y Article III allows federal jurisdiction over the entire case not onlyover the federal question or diversity claims

y Common nucleus standard (2) Even if relationship exists, supplemental jurisdiction is still precluded

if the situations fall into one of the exceptions listed in 1367 (b) or (c)

y Diversity exception: In cases where jurisdiction over the federalclaim is based solely on diversity 1367(b) prevents the use ofsupplemental jurisdiction over claims brought by plaintiffs againstparties joined under certain listed rules

o Rule 14, 19, 20, 24y Discretion exception: 1367(c) allows a federal court to refuse to

exercise supplemental jurisdiction over a state claim if the stateclaim raises a novel or complex issue of state law of substantiallypredominates over the federal claim, if the district court dismissesall federal claims, or in exceptional circumstances, for any othercompelling reasons

o Jin v. Ministry of State Securityo 1367 stretches courts jurisdiction to cover parts of cases that, if brought

independently, would not have fit within the district courts original jurisdiction Broad Rule Exceptions Discretionary Exceptions Tolling Provision

1367 Summary

Allowsyou to bootstrap stateclaims in federalcourt Federalcourtsdo not havediscretion with regardsto federal question

claims

Common lawancillaryand pendant jurisdiction Defendant would file Rule12(b)(1) to tryto kickstateclaims out of

federalcourt.

Gibbs (pre 1367 Decisions) followed by Finley after finely 1367 was made - Gibbs Test: doesstate and fed claims share the same common nucleus of operative facts? Whether the plaintiffsclaims are such that he would expect to try them in one judicial pleading?

Finley-No basis for Fed jurisdiction even if it came from the same common nucleus of operativefacts.

In comes 1367-


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Greigor v. regents- 1367d (tolling provision) crt. Held the state did not consent to the tolling of1367d provisions for statute of limitations. SC held that it was wrong to hold this provision on ano consenting state.

Jinks- Courts will uphold the 1367d tolling provision.

Jin- the court used the 2 part Gibbs test. Crt found that the state claim was related to the fedclaim because it would ordinarily be tried in the same proceeding and derived from the samenucleus of operative facts. SO the court denied the 12b1 but in the end dismissed the 12b6

Zhan- Crt held that all members/parties to an action must meet the amt. in controversyrequirement

Allpatah- Overruled Zhan. Crt said that just one person needs to meet the amt in controversyrequirement. But in doing so the Crt. allowed supplemental jurisdiction to the other members ofthe diversity class action suit that did not meet the amt. in controversy individually because theirclaims arose from the same nucleus of operative facts.

Fordomicile for natural peopleyou have to have theresidence whereyou are physically

located plus intentto staythere.Forcorporationsyou haveto look forthe Principle placeof businessand place of incorporation (nervecenter) Musclecenter (place oftheactivity)

Policy reasoning for 1367-

y Efficiency- tries it all at oncey Fairness- You want jury to hear all problemsy Convenience- amt of time and place bettery Cost self explanatory

Ameriquest Mortgage- Court says that loose factual connection may be sufficient to confer supp.

Jurisdiction as long as the facts are both common and operative. Crt wants to see if you cancompare the facts necessary to prove both claims. If elements of both fed and state claims are thesame then you can just bring them in once. Crt. Looks at whether or not the state claims can beresolved or dismissed without affecting the Fed. Claims. They granted Supp jurisdiction here.

Szendrey-ramos- crt denies to extend 1367 supp jurisdiction to Puerto Rico claims. Found thatthe PR claims far outweighed the Fed claims. It required state specific rules to decide. It wasalso denied because it was complex and novel issues involving state law. You had a cannon 21-its a lawyers conduct code under PR laws.

Personal Jurisdiction arises under 12b2 this can be waived. It is the power to adjudicate;basically the court can grab the person and drag them into court.Classical form of Personal Jurisdiction: Pennoyer (legal formalism)strictly about presence

y Power (sovereign state has power over anything within its borders)Modern form of Personal Jurisdiction: International Shoe (balancing jurisprudence andinstrumentalism)minimum contacts

y Reasonablenessy Balancing Jurisprudence (defendant, plaintiff, state/interstate, judicial, policy)

o Defendant is most important because Due Process rights are at stake.


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o Origins: Pennoyero Modern: International Shoeo Absorbing in Rem: McGee, Hanson, Shaffer

Classical PJ Modern PJ

State Sovereignty Purposeful Availment14th DPC Litigation relatedness

Art. 4, S. 1738, Comity Fair play; reasonableness

y Personal Jurisdiction deals with power (in rem and in personam),consent,and noticey Federal Courts must analyze personal jurisdiction as if it were a court of the state in

which it is located (derive power from state courts)Rule 4(k)(1)(a)

y Personal Jurisdiction inquiry is usually defendantdriveno Look at Defendants procedural due process rights under the 14th Amendment

(State action because the state courts are trying to exercise power and federalcourts derive power from the state in which they sit.)

o Shutts: analysis was inverted and the personal jurisdiction inquiry was driven byplaintiff.y Background:

o Comes from the idea of state sovereigntyindependent nation states Significance is the notion of boundaries Sovereignty does not go beyond borderstangible.

o Power is usually confined within the states border with the exception of LongArm Statutes

y 14th Amendment Due Process reinforces those bordersy Personal Jurisdiction with respect to Pleadings: Parties are more important than claimsy Discovery: You can conduct discovery on jurisdictional facts: i.e. send out interrogatories

to discovery in personam/in rem facts.4 Types of Personal Jurisdiction:

1. Inpersonam- power over the def. which can be a person or corporation (tag jurisdiction)ifIm in Fla. right now and its first time Im there if someone wants to sue me they canjust throw it in your face and you have to appear in Fla. court

2. Inrem- Power over a thing usually property. This is where you cant get inpersonam butyou want to decide ownership over property jurisdiction over the entire world if desk is

in Fla. then anyone making claim over that desk, Fla. will have jurisdiction over them

3. Quasi in rem- you adjudicate claims unrelated to the property presence of property isbasis for claims if person has property in the state you can use that property to get

jurisdiction over them even if it is from a total diff. issue4. Quasi in rem attachment- So and so owes me 10kI take his car because he is not here.

You seize car and attach car to claim (and sell) to try and get person in state.

We look towards a 2 step process: that limits Personal Jurisdiction

1. Statutorylimitations: ex. Long arm statutes. IF there is no Long arm statute you cantreach out of state to bring person


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2. ConstitutionalLimits: person must have fair and adequate notice. 4 prongs:a) Presence- Ive never been to Fla. ifIm there for 5 seconds they can serve meb) Domicile- where I livec) Appearance- if someone is trying to serve you and you show up trying to fight it that

doesnt count as waiving PJ and it counts as showing up in court.

d) Consent- You waive your personal jurisdiction and concede to states jurisdictiono Jurisdiction over Status

y Harris v. Balky Debtor, divorce, marriage

y General Jurisdiction: Jurisdiction overallclaims (may be unrelatedto action)o Party has Continuousand Systematicdealings with thestateo Based on Pennoyer: Presenceand Domicile

Jurisdiction over natural persons (residenceand intent) andentities(state of incorporation and ppbnotalwayseasyto figure out

because of nervecentersand musclecenters)o Through consentcoming into state voluntarilyo Corporations Presence determined by state of incorporations and principal place

of business.o Individuals can be sued in the state of their domicile for all claimso Claims may be unrelatedto thecontacts in the Stateo Federal court derives its jurisdiction from the territorial jurisdiction of the state

court.

y Specific Jurisdiction:o Claimsarising out ofcontacts with thestateo When the partydoes not havecontinuousandsystematiccontacts with the

state

o Gain specific jurisdiction viaconsent,long arm statutes,and minimumcontacts

o Specificto casesthat haveasubstantialconnection the parties in-stateactivity.

o Consent via contract, judicial agency; state directed acts (litigation, tort, business,property, etc.)

o Presence must berelatedto theclaimso Guiding Case: International Shoe

y Minimum Contacts (Defendants in-state conduct)y Continuous and systematic v. sporadic and casualy Related to/arise out of claim

y Fair play and Substantial justiceo International Shoe Guiding Principles For Jurisdiction:

y Continuous and Systematic and related to cause of actiony YES Jurisdiction

y Sporadic and casual and related to cause of actiony YES Jurisdictiony I.e. McGee


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y Sporadic and casual and not related to cause of actiony NO Jurisdiction

y Continuous and Systematic and not related to cause of actiony Uncleary Depends on which way it is defined and proved to the court

o Asahi: Deciding Fairnessy Interest Balancing Factors/Balancing Jurisprudence

y Defendanty Plaintiffy State/interstatey Judicialy Policy

y Complete Test for Personal Jurisdiction-Modern Principles ofMinimum contactso Purposeful availment

y Express and Implied consenty Instate activitiesy Policy: if you enjoy benefits and privilege of the state you are responsible

for reasonable consequences

o Litigation relatednesso Reasonableness (Fair play and substantial justice)

y Fairnessy Foreseeabilityy Interest Balancing Test (plaintiff, defendant, state/interstate, judicial,

policy)

y Spheres of Jurisdictiono Sovereignty/physical boundaryo

14

th

Amendment DPCo Long-Arm Statuteso State Directed Acts (tort, litigation, property, business)

y 2 Step Due Process Analysiso Minimum contacts: state courts have PJ over defendant if he could reasonably

expect to defend a lawsuit in that state

y Court looks at whether defendants instate activities are:y Continuous and sporadic (general)y Sporadic and casual (specific)

o Fair Play and Substantial Justicey Defendant can waive objections to PJ by:

y Consent (constructive)y Appearancey Estoppel (Rule 12 (h))

y 2 Types of Non-Resident Defendants:o Physically present defendants that are taggedno need for minimum contacts

because this is inherently reasonable (Do a Pennoyer analysis)o Absent defendantsneed minimum contacts (Do a International Shoe analysis)


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y Full Faith and Credit: Article IV, 1; 1738, Common Law Comityfederal courtsystem is not mentioned, only references to sisters states.

y Article III,2: sets the limits of federal judicial authority. Federal courts cannot exceedthose jurisdictional boundaries and Congress has the power to restrict the scope of federaljudicial authority more narrowly than the Constitution does.

y Article IV,1: Full faith and credit be given in each state to judicial proceedings ofevery other State.o Requires one state to recognize and enforce judgments of another state

y 14th Amendment,1: Due Process Clausey Rule 4, 5, 6,12, 37

o Rule 12(b)(2) Motion attacks Personal Jurisdictiono Rule 12(h)(1): waive personal jurisdiction if it is not brought up as a defense

y 1738: State and Territorial Statutes and Judicial Proceedings: Full Faith and Credito The acts of legislature on a state shall be affixed by the seal of such

staterecords and judicial proceedings shall be proved or admitted in othercourts within the USand such acts andjudicial proceedings shall have the same

full faith and credit in every court within the US.y 1391,1392,1404-07,1631y Defendant must raise jurisdictional defense in either the answer or a pre-answer.

o 12(b), (f), (g) make sequence criticalo Making any pre-answer motion that omits a defense of personal jurisdiction is

treated as a waiver of jurisdictiono Making an appearance or litigating other issues but failing to challenge personal

jurisdiction results in waiver of jurisdictional defense.

o Defendant must raise defense the first time she raises any issue, by way of eithermotion, appearance, or answer. She must litigate the claim promptly.

y 3 Types of Appearances:o Special/Limited Appearance: Contest Jurisdiction (must be careful not to raise

other issues besides jurisdiction or the court may consider that as consenting tocourts jurisdiction)

y Sometimes limited to the value of the thingo General Appearance: Waive objection to jurisdiction

Non-appearance: Default ruling and the defendant will make a collateral attackPennoyer: (is it there) you must provide notice and hearing. Here there was no proper notice. It

was printed in some obscure newspaper (not good) could have attached property before trial but

they didnt so that was also improper notice. Court Held it violated due process rights for court to

determine rights and obligations for which it had no personal jurisdiction.

Miliken-This is before international shoe- It raises the foundation for substantial justice and fair

play.

International Shoe: modern form of Personal Jurisdiction. In this case there was a Delaware

Corp. whose PPB was in Missouri. They had agents doing business in Washington but company

wasnt paying employment taxes in Washington. Is it fair evolves into min. contacts which has

a 3 part test:


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MinimumContacts Test:

1) Purposeful availement- is the state directed acts continuous and systematic. (He calls

general jurisdiction) or are they sporadic and casual (which he calls specific jurisdiction)

2) Litigation relatedness- you apply this by looking at the cause of action. Is whatyoure suing for related to state actions youre involved in

CS= Continuous & Systematic SC= Sporadic & Casual

CS + Related= personal jurisdiction

SC+ Related= Personal jurisdiction

CS + Not related= you lean towards yes but its kind of iffy

SC+ Not related= No personal jurisdiction

3) Fair play and substantial justice-

Holding: the sales were continuous and systematic throughout the years (3 in this case) because

of a large volume of interstate business, therefore state was permitted to enforce Personal

jurisdiction for the obligations for which the Corp. had incurred.

McGee: stands for the fact a single contract can suffice for personal jurisdiction if you can show

purposeful availment. Court held there was specific contacts in Cali (she had always lived there

and her premiums were mailed there & corp. knew that they were doing business with someonein Cali.)Due process was not offended because there was a substantial contact with the state of

Cali

Hanson v. Deckla- Here the def. must purposefully avail themselves of the privileges of

conducting activities within the foreign state, therefore invoking the benefits and protection of

the states laws. The trust was established in Delaware & the trust moved and died in Fla. Court

said Fla. had no jurisdiction because Co. had no company in Fla. and the transaction was done in

Delaware.

Unilateral activity cannot satisfy the requirement of the contract taking place there in the forumstate. All this could have been avoided if stipulations had been added within the contract.

Shaffer- Here you have the incorporated in Delaware PPB in Arizona- you have a rule 23.1

derivative shareholder suit. Here the holding of the case applies Intl Shoe to quasi rem. Issue

here is that the stocks were sporadic and casual and was not related so there was no jurisdiction.

This case overrules parts of if not all of Harris and Pennoyer. If Delaware had a statute that all

D&Os could get sued in state court it would be fine. (Citus Statute)


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Perkins- decided in 1952! It allowed continous and systematic but unrelated. In Perkins they said

that if Ohio decided to extend that there was PJ it would not violate def. due process.??? (hasnt

been followed by anyone else)

Helicoptorres- Here the court said it did not arise out of or related. Had a foreign corp. whose

ppb was in Columbia. It did have some ties in texas (negation and training done in texas and

80% of fleet and parts was bought in Texas) but court said it wasnt enough to be continous and

systematic.

11/28/08

Worldwide VW- foreseeablility that cars may wind up in OK does not equal purposeful

availment. The def. conduct in connection With forum state must be such he should reasonably

anticipate being hauled into court in that state. They expanded the fairness test to reasonable

analysis. 5 part test

1. (most important) Burden on the defendant (hes the one that has the Constitutionalrights, its he that is getting hauled into court maybe in a court that is

inconvenient)

2. Plaintiffs burden3. States interest4. Judicial interest5. Public/policy interest

Use this under the specific jurisdiction cases.

General Jurisdiction- someone has so much action/activity in that state where it doesnt matter if

those activities are related to the suit they have

Specific Jurisdiction: see above-

ASHAI- simply placing a product into market is not sufficient for min contacts. Asahi filed a

cross complaint under rule 14 interpleader under joint and several. Asahi was a Jap. Corp.

Court also states defending a lawsuit in a foreign legal system shall have sig. weight applied in

determining the long arm statute (reasonableness) for personal jurisdiction reasons over other

nations. Awareness that the sweep of commerce may bring a product into the state is not the

same as directly placing that product into the state.


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Burger King Corp. v. Wouderwitz- court says there is personal jurisdiction. A contract with an

out of state party alone cannot automatically establish min. contact so you must evaluate the

relationship. When making that evaluation: when the def. purposefully directed his activity in

that forum state he must then show why jurisdiction would be unreasonable. Roucherist reached

beyond Michigan and negotiated with Fla. and in doing so he was getting the benefits from a

nationwide Corp. whose PPB was in Fla.

Important; the court isnt saying you couldnt have this case in Michigan. However this case was

filed in Fla., if it was filed in Michigan home state rule would have kept it there.

Pavolich- uses the zypo analysis concerning the internet. Simply posting info. Does not create

personal jurisdiction if there is interaction over the internet there may be PJ and if your doing

business there is PJ.

Court held that posting a passive website was not enough to subject the def. to personal

jurisdiction in Cali. Because the info was not purposefully directed towards Cali. If they decided

this the other way the idea of personal availment would be completely eliminated. So court had

to come out this way.

Coastal video- they were looking at how much is actually sold in a state. Coastal video used a

motion for discovery, and court granted motion to find out if movie was sold in Virginia and

what % of company sales was sold in Virginia.

Burnham- reinvigorates Pennoyer. It stands for tag jurisdiction (if its there then theres PJ) it

deals with physical presence. Court has to use specific jurisdiction analysis. Was there

purposeful availment and was cause of action related? Answer is no but court held that it was fair

and substantial justice. Court is saying if your completely in that state then your subjecting

yourself to that states PJ. 5 analysis test:

Def: was trying to argue that it is unfair because if he leaves home state he is subject to service

and PJ anywhere.

Plaintiff: says it unfair for her to leave with kids from NJ

State: has an interest in regulating divorce (side note. If one person lives in a state a state can

grant a divorce.


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Judiciary interest: wife and kids are there so its easier to try case there.

Interstate interest: we have to have a system setup to handle divorce especially with the

easy travel these days.

The court also states that the property ownership must satisfy the lit. relation test. This alone can

undermine some forms of the quasi in rem attatchment jurisdiction. Physical presence alone

constitutes due process because it is continuing a legal tradition. Because you are using states

power, benefits, and etc

Two types of nonresidentialdef.: thosethatare present use- Pennoyer or burnhem

Thosethatareabsent- internationalshoe

Carnival Cruise lines- deals with consent as a substitute for power. The court states that a

reasonable forum selection clause contained on passenger tickets are valid. The way to test if

they are valid is:

1) Is there a special interest in limiting the available forum a def. can be sued

2) Clears up confusion to where suits should be brought & this saves time and money of

pretrial motions and determination of the correct forum

3) The class of plaintiffs benefit in some way.

Court says they do benefit (plaintiffs) because it limits expenses and it makes Carnival not have

to do worldwide litigation.

Court says number 1 is good because: PPB of carnival is in Fla. and ships arrive and depart from

Fla.

The court found no fraud bad faith or consciouability.

Hess v. Polowski (?)

- Court sustained jurisdiction over a nonresident defendant who had been involved in anaccident on the Mass. highways

Removal 28 USC 1441,1446,1447

o Givensdefendantan option to second guessthechoice of forumONLYTHE DEFENDANT CAN REMOVE and he hasthe burden to state whythe

caseshould beremoved

Point is to protect the defendants interest


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Fairness policy: Out of state non-resident might encounter prejudice instate court.

o Removal is contingent upon whether it might have been brought in federal courtoriginally

o Ways for plaintiff to avoid removal:

Do not plead a federal question Add a non-diverse party Amount in controversy not satisfied

o 1441: Defendant in astatelaw case mayremoveacase of which thedistrictcourts ofthe US have original jurisdiction

Entire case: The whole case must be removedif one or more claims donot fit within 1441, removal is impossible

Defendants: Only defendants may remove case and must give notice District Courts have Original Jurisdiction: State court action must be one

that could have been filed in federal court originallyfederal court musthave federal question, diversity, or supplemental jurisdiction over all

claims in the case. Removal Based on Federal Question: Determining whether state courtcase presents a federal question works similarly to how it would hadaction been filed originally in federal court. Court applies the well-pleadedcomplaint rule to determine if the complaint states a federal question

Removal Based on Diversity: With 2 exceptions, diversity in a removalcase is treated just as it is in a case originally filed in federal court.

y Home-state Removal Bar of1441(b): Removal is impossible ifany of the defendants is a citizen of the state in which the stateaction is brought.

y Time for Determining Diversity: In removal cases, diversity mustexist in the state court case both when the case was filed and at thetime of removal

o Exception: Case in which the parties are not diverse isimproperly removed but the district court fails to remand,any judgment rendered by the district court is validprovided that diversity did exist at the time judgment wasentered. CaterpillarInc v. Lewis.

Removal Based on Supplemental Jurisdiction: Cases often involve manyclaims and many parties. When federal question and diversity jurisdictiondo not exist for certain claims in a case, it is necessary to considersupplemental jurisdiction when Defendant attempts to remove.

Removal of Separate and Independent Claims: When plaintiffs caseinvolves state law claims that are separate and independent from thefederal claims 1441(c) may allow removal of the entire case.

Artful Pleading Doctrine: If complaint is crouched purely in terms of statelaw but in fact contains a disguised federal claim, case can be removed asa federal question

o 1441


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(a) Any civil action may be removed by the defendant or the defendants.Cases go to district court of the US for the district and divisionembracing the place where the State action is pending.

(b) 1st Sentence: Any civil action.arising under the Constitution, treaties,or laws or the US shall be removable without regard to the citizenship or

residence of the parties = 1331. 2

nd

Sentence: Any other such action shallbe removable only if none of the parties in interest properly joined andserved as defendants is a citizen of the State in which such action isbrought = 1332: HOMESTATE RULE Says that defendant cannotremove is he is being sued in his home state.

y Limitation: diversity cases may not be removed if one or more ofthe defendants are being sued in their home state

(c) Whenever a separate and independent claim or COA within thejurisdiction conferred by 1331 of this title is joined with one or moreotherwise non-removable claims or COA, the entire case may be removedand the district court may determine all issues therein, or, in its discretion,

may remand all matters in which State law predominates--1367(c)(2)y i.e. When federal question joined with non-federal question, entire

case may be removed

y Cross-reference to 1367(c)(2): state predominates federal claimo 1441 Summary:

Does notcome from the Constitution but wasenacted bystatute in1789

Mostremoval occurs in civilcases Becausethedefendantremoves, he hasthe burden of proof Removalcan only go from Stateto Federal Court Undersubsection (b)

y Ifthere isa federal question,diversityandcitizenship do notmattery Homestaterule: Cannotremove ifyou are from thestate

wheretheaction is pending (onlyappliesto diversity

jurisdiction)

CASE CAN BE REMOVED ONLY IF IT COULD HAVEORIGINALLY BEEN FILED IN FEDERAL COURT

o Difference between 1367 and1441: 1367: when case is dismissed, you must refile in state court 1441: case is remanded to state court

o 1446: Procedure for Removal Notice: Defendant files notice of removal with appropriate district court Timing: Notice must be filed within 30 days after the defendant receives

notice that he is a defendant in a state court caseo 1447: Procedureafter Removal Generally

(c) Contains a pair of provisions concerning remand to the state court. Thefirst, a motion to remand on the basis of any defect other than lack of SMJhas a 30-day time limit. The second requires remand if the district lacksSMJ.


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y Courts have interpreted the first to apply to problems that wouldprevent removal but would not have destroyed federaljurisdictionfor example if one or more of the defendants seekingremoval was a citizen of the state where suit was brought

y The second refers to facts that negate federal SMJfor example,absence of a federal question or diversity.

Caterpillar- court found that district courts erred for failure to remand was not fatal to cases

outcome as long as the federal jurisdiction requirements are met before the time judgment is

entered

Judgment stands because diversity was met before judgment. Court let it slide under the

judicial/economy policy. The court uses the argument that under 1332 it doesnt say that it has to

be at the time of filing that the jurisdiction has to be met (rare kind of slipped under radar)

Groupo: court must meet look for citizenship at the time of filing. Even if the citizenship is metbefore judgment it must be dismissed

Lapideese: when the state voluntarily removes the case to the federal court it surrenders its

sovereign immunity

Sygenta- court held that section 1651 (all writs act) does not provide an independent basis for

SMJ

Beneficial National Bank- the state claim may be removed to federal court when congress

expressedly provides for it or a fed. Statute completely expresses the action through pre-emption.

Congress intended that the Banking act be the only cause of action for usury claims therefore it

was allowed to be removed into fed. Court.

Martin v. Franklin- under 1447c

civ pro outline campos fall 2010

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