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Attack Outline

Attack Outline

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Published by: Hank Zhou on Dec 20, 2011
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PERSONAL JURISDICTION

I. In Personam [ ] A. Domicile (Milliken) [ ] B. Presence/tag jurisdiction (Burnham) [ ] C. Consent (Pennoyer, Insurance Corp of Ireland, Carnival Cruise) [ ] D. DP (14AM for SC, 5AM for FC)/Long arm statute (Hess, Gray)/piggy backing if in FC General Jurisdiction [ ] 1. Contacts substantial, continuous and systematic? (Benguet Mining) [ ] 2. At home test (Helicopteros, Goodyear) Specific Jurisdiction: Min Contacts  Reasonableness of PJ [ ] 1. Minimum contacts that wouldn't offend fair play/substantial justice (Intl Shoe) [ ] 2. D must purposefully avail himself to benefits and protections of forum state’s laws (Burger King) [ ] 3. Single contact may justify jx depending on nature and quality of contact (McGee, BK) [ ] 4. Could they reasonably foresee being haled into court there? (WWV) [ ] 5. D-oriented. Conduct of D not P (Hustler Magazine) [ ] 6. Was the contact the unilateral action of 3rd party? (Hanson, WWV) [ ] 7. Effects test: effects of intentional act are felt in forum state (Calder v. Kulko) [ ] 8. Are the contacts stale? (Pebble Beach) [ ] 9. Purposeful directed stream of commerce (additional activities; O’Connor) or stream of commerce w/ foreseeability (Brennan)? (Asahi and McIntyre) [ ] 10. Reasonableness of PJ: comports w/ notions of fair play and substantial justice [ ] a. Asahi 5 factor test: (1) Forum state’s interests; (2) P’s interests of convenient and effective relief; (3) burden on D; (4) Efficient resolution; (5) Substantive interest of several states [ ] 11. Technological contacts: [ ] a. Is website active, passive or interactive? (Zippo, Pebble Beach) [ ] b. Internet contacts treated same as physical contacts Jurisdiction Based on Property [ ] 1. Always has in rem jurisdiction to decide ownership (Balk situs of debt) [ ] 2. QIR 1 (dispute about interest in property) & QIR 2 (property acts as foothold for some other dispute [ ] a. Property alone can’t circumvent PJ, attachment only proper if PJ exists. (Shaffer situs of stocks) [ ] b. It can be used to bring a LAS to constitutional max

Documentary proof required. Lindsay). Notice [ ] A. real property) [ ] 2. assault in Doehr) [ ] d. Simple case v fact specific (Debt owed v. Matthews test (Doehr) [ ] 1. Heroic efforts not required (Dusenberry.NOTICE AND OPPORTUNITY TO BE HEARD II. Risk of erroneous or arbitrary deprivation/sufficient safeguards (Mitchell v. (Affidavit?) [ ] e. none) [ ] b. Depravation of property w/o opportunity to be heard violates DP (Fuentes) [ ] B. DP requirements: notice to provide opportunity to be heard [ ] B. Aware of possible non-receipt and reasonable alternative method taken? (Flower. Mullane) [ ] 2. Di Chem) [ ] a. Conform w/ state statutes? (MD Fireman) III. Post-seizure hearing availability (Immediate v. Opportunity to Heard [ ] A. Judge v clerk [ ] 3. Convey required information (Aguchak) [ ] 3. Public and P’s interest in prejudgment seizure? (Need for prompt action) . Is the service reasonably calculated under the circumstances to give notice of suit? (Mullane) [ ] 1. Extent of D’s affected interests (Chattel v. Bond requirement (Doesn’t resolve issue by itself) [ ] c. FRCP 4 [ ] C.

Look at well pleaded complaint. Is it just an anticipated defense [ ] b. Does it satisfy the statutory test of 1331? [ ] 1. 28 USC 1332 [ ] A. D must prove w/ legal certainty that damages should be another value. (Mottley) [ ] a. Is there a federal question embedded in the claim? (Smith Exception) [ ] a. Probate and Domestic relations. Is there complete diversity as of the date action was commenced? (Strawbridge) [ ] 1. parties’ citizenship considered (Rose) [ ] 4. Multiple P v D. Only real. If P just artfully pleading to stay out of FC? (Bright) [ ] 2. Directs and coordinates activities (Hertz Corp) [ ] 5. Domicile = residency and intent to remain/return when absent (Mas) [ ] 3. not nominal. Empire Health) . (2) party seeking federal jx. Post-filing change of citizenship doesn’t resolve diversity issue (Grupo) [ ] 6. Sect II) [ ] 1. [ ] a. Is federal law an ingredient of the claim? (Osborne) [ ] B. Disputes truly arising out of probate and marriage (Marshall & Ankenbrandt respectively) VI. See supplemental jx (Exxon Mobil) [ ] C. For PPOB use nerve center test. I. Aggregation rules: [ ] a. Exceptions very narrow. Value of injunction from 3 perspectives: (1) P. Does it meet the AIC requirement? [>$75K. Is federal issue substantial (PROA welcome mat not missing key) [ ] c. All P claims v single D [ ] b. Is federal issue actually disputed [ ] b. Fed issue must give rise to complaint [ ] c. 1332(a)] [ ] 1. Is federal issue interpretation necessary in court’s decision [ ] c. Corp: incorporation and PPOB [1332(c)(1)] [ ] a. Ps not joined under Rule 19 don’t need to meet AIC. Is there an implied private right of action?(Merrell Dow). Diversity Jurisdiction. [ ] 3. Is there a floodgates concern? (Issue of law or fact. Arising Under [ ] A. Citizen of state = US citizen and domicile (Dred Scott) [ ] 2. Dropping non-diverse party does resolve diversity issue (Caterpillar) [ ] B. Grabel balancing test. Does it satisfy the constitutional test? (Article III. [ ] 2. 1 P v Multiple D: No. Aggregate only to enforce single right (if P1 fails to collect other Ps get more) [ ] c.SUBJECT MATTER JURISDICTION V. Is it exempted from FC? [ ] 1. Claimed damages presumed to be in good faith. [ ] 2. (3) either P or D [ ] 3. If original/named P meets AIC. unless joint and several liability [ ] 4.

Lack of SMJ means J is void (Capron) [ ] B. Court can decide SMJ and PJ in any order it pleases (Ruhgras) . State claim substantially predominates federal claim or are novel and complex (1367c) [ ] 3. Challenging SMJ [ ] A. Presumption that supplemental jx granted if state claim and fed claim arise from common nucleus of operative facts (Gibbs) [ ] B. 1 yr after complaint if diversity SMJ [ ] C. require all Ds to consent IX. Federal claims dismissed (1367c) VIII. If appealed determine if certain requirements are merely elements of the claim (Lacks) [ ] 2. Removal filed w/in 30 days. 1441. Can challenge any time before J and appeal after J [ ] 1. 1367b) [ ] 2. FC must have original jurisdiction at time fed jx invoked (Syngenta) II. 28 USC 1367 (same case or controversy) [ ] A. Hometown D can’t remove unless arising under SMJ.VII. Class action removal doesn’t have time limit. Removal to district action is pending. All Ds must consent [ ] B. Diversity destroying parties not allowed except Rule 20 & 23 Ps (Kroger. home-town D exception. 1446. 1447. Remand to SC not appealable [ ] D. Exceptions: [ ] 1. SMJ can’t be waived. 1453 [ ] A. Supplemental Jurisdiction I. Removal Jurisdiction: I.

Is there an adequate alternative forum [ ] a. Clear abuse of discretion standard [ ] D. D is subject to PJ. For corps anywhere with PJ [ ] B. Private interests: Location of evidence/witnesses. Forum Non Conveniens [ ] A. Venue [ ] A. Is D burdened or forum shopping? Obstacles to fair trial. [ ] 2. Deference to P’s choice of forum. [ ] 2. [ ] 1. open floodgates [ ] C. D resides. Appellate ct should review district ct’s analysis of forum non w/ deference. [ ] b. [ ] 1. Court can grant transfer even if it lacks proper jx (Goldlawr) XI. Based on sliding scale.VENUE and FORUM NON CONVENIENS X. There is a better forum to adjudicate [ ] B. Law of transferee state applies. Ferens) [ ] C. (P is master of his complaint) [ ] a. events that give rise to claim occurred. 1391: Venue proper where: [ ] 1. Forum non can be granted w/o PJ or SMJ if it is the easiest threshold question (Reynolds) . 1406: Dismissal or transfer of claim when original venue improper. Chosen for convenience or forum shopping? [ ] 3. Completely judge made. Balance private interests and public interests [ ] a. Unfavorable change in law is acceptable unless remedy in alternative forum is so clearly inadequate it is no remedy at all [ ] 2. 1404: Allows for transfer if new forum is more convenient. Public interests: Choice of law. interests of current and alternative ct. Process: (Piper Aircraft. Law of transferor state follows transfer (Van Dusen. Iragorri) [ ] 1.

Significant conflict btwn SL and identifiable fed interest XV. FC must apply the conflict of law rules of the state it sits in (Klaxon) [ ] B.APLICABLE LAW/ERIE QUESTION XII. Reference RDA analysis. Ex ante impact of choice of law on outcome [ ] 4. modify or enlarge substantive right granted by SL in conflict? Look at SL. Statutory test: Does it really regulate procedure? (Sibbach) [ ] a. Question involving rights of US arising under a nationwide program [ ] b. Constitutional test: Is the law/FRCP arguably procedural (valid exercise of congressional power)? [ ] 2. Reverse Erie problems: application of FL in SC. If no. Is there a conflict between state and federal law [ ] 1. Erie Analysis [ ] A. and (2) requires uniformity in application (Dice) . Is the FRCP really procedural in this context? Does it abridge. Look to face of FRCP to determine if it really regulates procedure (Scalia Shady Grove) [ ] b. Modified outcome determinative test considering twin aims of Erie (Hanna) [ ] 3. apply REA analysis. Sufficiently broad to control the issue (Stewart) Supporter of FL [ ] B. Strong strong fed interest [ ] b. Is SL substantive? [ ] 1. (Ginsburg dissent Shady Grove) XIII. When can you create FCL? [ ] 1. FC interest in operating as an independent court system w/ its own procedures [ ] c. Ascertaining State Law [ ] A. State interest in preserving the rights and obligations created by SL [ ] b. Desire for uniformity [ ] 2. Avoids guessing on FC part. Apply FL if (1) it grants a substantive right. If there is no clear ruling on the matter the FC can [ ] 1. Direct conflict standard (Walker) Supporter of SL [ ] 2. Federal Common Law [ ] A. Is FRCP procedural? (If fed statute and not FRCP use Walker and Constitutional test only) [ ] 1. Outcome determinative test (York) [ ] 2. Look to intent of state legislature to determine if SL is substantive and FL AME. apply RDA analysis. Erie guess: act as another ct of the state and make the decision based on past relevant holdings/dicta XIV. 2-step Kimbell Analysis [ ] a. Voluntary on part of SC but they typically do to clarify state law [ ] 2. (Stevens concurrence Shady Grove) [ ] c. Gasperini Accommodation between SL and FL [ ] C. Byrd balancing: [ ] a. Primary conduct test (Harlan Hanna) [ ] 4. Certify question to the highest SC. Enclave theory Boyle (opposed to Statutory Authorization and Co-Extensive Theory) [ ] a. Federal Law in State Court [ ] A. If yes.

(American Nurse) XVIII. Plausibility standard: sufficient facts to state a claim to relief that is plausible on its face. 21 day safe-harbor time. SOL allows relation back. [ [ [ Complaint FRCP 8 ] A. Higher requirement merged w/ Rule 8. Arising out of same transaction in the original pleading.PLEADING XVI. (Twombly) [ ] 1. (2) factual contentions have evidentiary support or good faith belief evidence will be discovered in discovery [ ] B. Rule 9B requires higher standard for claims of fraud or mistake. [ ] B. Answer (FRCP 8) [ ] A. Look at remaining allegations to see if plausibility standard is met (Iqbal) [ ] D. Changes party. [ ] 1. Denying knowledge can result in an admission of allegations. Lower standard then complaint XIX. Only a reasonable inquiry into the validity of factual allegations (Yonkers Racing) . Allege fraudulent activity w/ particularity (Denny) XVII. If the amended party (1) received sufficient notice. Compulsory v permissive counterclaims. Counter Claims (FRCP 13) [ ] A. conclusory in the complaint [ ] 2. Attorney is certifying filed pleading is: (1) not for improper purposes. Relation back turns on D’s knowledge not P’s (Krupski) XX. Notice pleading: Contain a short and plain statement of the claim and give notice? (Dioguardi) ] B. Relation back: Amendment relates back to date of original pleading if [ ] 1. Deter frivolous proceedings (FRCP 11) [ ] A. Information asymmetry concerns [ ] F. Is there no set of facts under which P could recover? (Conley) ] C. Assume allegations are true and in best light for P. Amending the Pleadings (FRCP 15) [ ] A. 12(b)(6) Pre-answer Motion – Failure to state a claim upon which relief can be granted [ ] A. I. Court may grant if justice so requires [ ] B. and (2) should have known action would have been brought against him except for mistake by P [ ] C. Sanctions may be given for violating only after the 21-day safe-harbor period [ ] C. by themselves. Admit or deny allegations. Weed out allegations that are. Affirmative defenses. Legitimate & illegitimate claims together are fine. or [ ] 3. [ ] 2. XVIII. Uncomplicated cases easily meet the plausibility standard (Erickson) [ ] E.

Evidence must be viewed in light most favorable to non-movant but inferences must be: [ ] a. [ ] B. Did they waive ACP by disclosure? [ ] a. Is there a substantial need/undue hardship. Was the standard used the same as would be necessary at trial? (Anderson) [ ] 2. Privilege and Work Product [ ] A. ACP [ ] 1. Just a showing of holes [ ] b. In connection w giving legal advice [ ] 3. If movant doesn’t bear burden of proof at trial: [ ] 1. [ ] A. [ ] B.DISCOVERY/AWP XXI. FRE 502 protects from inadvertent waivers SUMMARY JUDGMENT XXIII. 33 (interrogatories) XXII. Voluntary to disclosure to third party [ ] b. Non-movant can submit evidence that is reducible to admissible at trial Evidentiary standard: [ ] 1. AWP: [ ] 1. Affirmatively negate non-movant’s essential claims or facts (Adickes) [ ] a. Is it made in contemplation of litigation? Hickman [ ] 2. Discovery FRCP 16: pretrial conferences FRCP 26: discovery. Not just control group Upjohn [ ] 2. Plausible? (Matshushita) [ ] b. Reasonable considering information on record? (Scott v Harris) . Show a lack of sufficient evidence to prove non-movant’s essential claims or facts? (Celotex) [ ] a. Modes: FRCP 34(documents). 30(depositions). Only available method if movant bears burden of proof at trial [ ] 2. No genuine dispute as to any material fact [ ] B. [ ] C. Summary Judgment (FRCP 56) [ ] A. Movant only doesn’t need to use affidavits to support.

(2) Privity. Binding non-parties. D1 defensively using CE against P2? [ ] 1. Is it a claim could have been litigated in previous action? [ ] D. Intersystem Preclusion [ ] A. Incentives to litigate issue in prior action? [ ] c. If yes to all: claim preclusion exists. [ ] A. (Semtec) . Federal Common Law: Preclusive effect of FC sitting in div should be the same as SC in forum. Inconsistent w/ prior Js? [ ] b. Adequate representation requires: (a) Interests to be aligned. Burden on parties to join strangers (Martin) [ ] 2. ONCE: P2 using CE offensively against D1? (Parklane) [ ] 1. Use promotes judicial efficiency? Could P have easily joined earlier suit? [ ] 2. Res Judicata/Claim Preclusion. would finding RJ support policies of efficiency and repose? [ ] H. Mutuality [ ] A. Related to the same claim/transactional event (Matthews v New York Racing) [ ] C. Are any of the 6 exceptions to non-party preclusion present? (Tyler) [ ] a. Valid and final judgment on the merits [ ] B. Does it involve the same parties/those in privity with them? Mutuality (Matthews) [ ] E. If borderline case. Was there a valid and final judgment on the merits? [ ] B. [ ] G. Would it be unfair to the defendant? [ ] a. Current action afford more procedural opportunities? [ ] C. Note: cross check for CE. Collateral Estoppel/Issue Preclusion [ ] A. (4) Asserted control over prior action. (3) Interests represented adequately.PRECLUSION XXV. (5) Proxy. Was the issue actually litigated? (Cromwell v County of Sac) [ ] C. Was the issue necessary to the judgment? Counter-factual (Rios v Davis) XXVII. and (b) court protected interests of nonparty or party knew she was rep. Should the person have appealed the previous judgment but didn't? (Moittie) [ ] F. (1) Agrees to be bound. (6) Statutory exceptions [ ] b. XXVI. DNCE: D2 using CE defensively against P1? (Blonder-Tongue) [ ] B. and (c) nonparty had notice of rep XXVIII.

Mandatory [ ] a. (2) Injunctive class. Adequacy of representation – rep and class counsel will fairly and adequately represent interests of class [ ] a. day in court [ ] B. Numerosity – joinder of all parties impracticable (40+) [ ] 2. Necessary party: Must be joined if feasible (subject to service and won’t deprive ct of SMJ) [ ] 2.JOINDER and CLASS ACTIONS XXIX. 23(a) and (b) requirements need to be met [ ] a. Typicality – claim of rep party typical of claims of class [ ] a. FRCP 19: Required joinder [ ] 1. Mandatory class requires all members and may have implied predominance standard (Ortiz) [ ] a. Mandatory [ ] a. PJ for CA met if given notice and opportunity to opt out (Phillips) [ ] E. Commonality – common question of fact or law [ ] a. Needed for due process. D’s interest in avoiding multiple litigation and inconsistent J [ ] c. Predominance – common question of fact or law predominate other issues (Anchem. Joinder [ ] A. (e) Settlements – Court must approve of its fairness. Concerns of adequate representation high (Amchem. Not mandatory [ ] a. Hansberry) [ ] b. P’s interest in obtaining a forum (Provident Tradesman) [ ] b. Low standard (Ginsburg dissent Walmart) or high/blend w/ predominance (majority Walmart) [ ] 3. Conflict of interest needs subclasses (Anchem. Limited fund must be truly limited (Ortiz) [ ] 2. Damages that are granted must be incidental. Relief for P doesn’t mean relief for class (Falcon) [ ] 4. (Walmart) [ ] 3. Class Actions FRCP 23 [ ] A. Ortiz) [ ] D. Superiority – CA superior to other available methods (Castano) [ ] c. Stranger’s interest in having rights protected (Pimmentel) [ ] c. Public interest in litigating in wholes XXX. Concern of arbitrariness in applying state law (Philliips) . FRCP 20: Permissive joinder: arising out of same transaction or occurrence. (1) Prejudice class – risk of prejudice against (a) D (inconsistent J) or (b) class members (J dispositive of rights). Look to manageability of case (Castano) [ ] C. Indispensible party must be joined or claim. (a) Prerequisites [ ] 1. must be dismissed [ ] a. (3) Damages class. in equity and good conscience. Castano) [ ] b. (b) Types of Classes [ ] 1. Simple to meet [ ] B.

Multiple Ps where one meets AIC v D? Yes(Exxon) .

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