Civil Procedure, Fall 2010 Williams

PERSONAL JURISDICTION (jurisdiction over the particular parties or property)

ELEMENTS: Was D present in the state? YES = valid PJ Does state have a long arm statute conferring jurisdiction? NO = no PJ Are any of the following true? YES = valid PJ o Is D domiciled or incorporated in forum state? o Has D consented to be sued in forum state? o Does D own property in forum state? o Does D regularly transact business there? Are at least some of Ds contacts with forum state voluntary? NO = no minimum contacts = no PJ Does C/A arise out of or relate to Ds contacts with forum state? o If NO Are Ds contacts with forum state systematic and continuous? NO = no minimum contacts = no PJ Does D have minimum contacts? (i.e. could D have reasonably anticipated having to litigate here?) NO = no minimum contacts = no PJ Is jurisdiction reasonable, comport with traditional notions of fair play, considering burden on D, interests of the forum state, and Ps interest in getting relief in the forum state? NO = no minimum contacts = no PJ o If YES, then the court may constitutionally exercise personal jurisdiction over D.

Issue: In what states can P sue D? 1) Two reqs must be met before a court has jurisdiction over the parties (14 th Amendment Due Process Clause): a) Substantive Due Process: Court must have the power to act upon a given person or property. b) Procedural Due Process: D must have been given adequate notice and an opportunity to be heard 2) Full faith and credit clause Article 4 1: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. This compels the enforcement of ones states judicial proceedings in other states. 3) Three Kinds of Jurisdiction over the parties; one of these three MUST be present in order for case to go forward: IN REM JURISDICTION: Courts power over an item of property. Subject matter is the property; Judgment on property is binding on all, whether named in the proceeding or not. (Ex. title or marriage status) Law assumes that property is always in the possession of its owner, attachment serves as notification. Dont need to fulfill minimum contacts. QUASI IN REM JURISDICTION- Action commonly used when jurisdiction over the defendant is unobtainable due to their absence in the state. Any judgment will affect only the property seized, as in personam jurisdiction is unobtainable, attaching property or debt found within forum state.

Jurisdiction over the person through their interest in the property located within courts territory. Not enforceable in any other state. Need minimum contacts. (I) Only affects the rights of the named parties to an attached property (II) Subject matter of dispute is something besides the property. Unconstitutional bc you cant attach property to a claim that is not related to the property. (Shaffer v. Heitner: Where P tried to get jurisdiction over Greyhound board of directors through stock, applying Intl Shoe standard to quasi in rem II suit.) IN PERSONAM JURISDICTION: Courts power over a particular defendant, all of that persons assets are subject to suit, and judgment is enforceable in all states. 1. Minimum contacts 2. Purposeful availment 3. Not a unilateral act of P PRESENCE: o Transient Service: Jurisdiction may be exercised over an individual by virtue of his presence within the state even if he is originally from out of state, as long as service is made while he is in the forum state. (This doesnt apply to corporations) o Burnham: Visiting kid in CA when served o Harris v. Balk: The obligation for the debtor is wherever the debt goes. Citus (location) of the debt is wherever the debtor may be. o Pennoyer v. Neff: A personal service cannot render an in personam judgment without notice against an absent defendant. Unless defendant voluntarily appears or has property attached prior to the litigation. Jurisdiction needs to have the authority to protect its own residents. They use this as a funnel to grab an out-of-state resident through his property. Without that the state would be unable to protect or relief its citizens. It is permissible to obtain personal jurisdiction over D by serving her in the state where the suit is being brought. DOMICILE: o Place where one resides indefinitely. Sleeping is often found to establish domicile. o Corporations: Any state in which they are incorporated (not same standard as diversity) CONSENT: o Voluntary Appearance (as opposed to a Special Appearance) o Advance Consent: Choice of forum clauses: Choose one, preclude others. Contest that would be unreasonable hardship (heavy burden) Cognovit note clauses: Permits creditor to have judgment against defaulter of a loan. o Implied Consent: Hess v. Pawlowski: Implied consent for use of public roads Corporations used to have to appoint an agent in state or impliedly consent to having done so. MINIMUM CONTACTS: o INTL SHOE STANDARD Continuous and systematic activity in forum related to cause of action.

GENERAL JURISDICTION: If contacts are sufficiently substantial and continuous that D would expect to be subject to suit there, and it wouldnt be inconvenient to defend themselves there. Helicopteros Nacionales de Colombia v. Hall: Sued in TX by TX residents who were killed in a helicopter crash in SA. P cannot sue D in TX, as claims did not arise out of Ds in-state activities, and there was no general jurisdiction bc TX activities were not systematic and continuous. Even if sporadic or only a single act, can have specific jurisdiction when c/a arises out of that activity or act. But sporadic or casual activity doesnt justify unrelated c/a. Burger King: One limited, continuous contact is enough A contact that is causal or isolated doesnt confer general jurisdiction, but can confer specific. Kulko: Test for specific jurisdiction for individuals and corporations D may have contact with a state without having acted within the state: o Act that D knew would cause harmful effects in the state. o Indirectly derive business/profits from the state. o Contacts at the time D acted, not at time of lawsuit. o PURPOSEFUL AVAILMENT: Hansen v. Denckla: The contacts with a state must be purposeful availment of states protections and benefits. Need not enter that state Parents/subsidiaries have different jurisdictional requirements usually. If personal act found, then consider: Interest of forum state Burden on D PRODUCTS LIABILITY: Worldwide VW: A consumer taking a product to a state is not purposeful availment, dealer doesnt know what consumer does with the car. Gray: Have jurisdiction if knew that stream of commerce will bring a component to a forum state. Formal separation btwn manufacturer and component manufacturer not significant. Asahi: Split on whether mere act of selling goods outside forum state that will likely be imported into forum state for resale suffices supporting jurisdiction: o OConnor: Mere awareness is not enough, need to show that it was designed to serve market in the state, i.e. designing product for state market or advertising there. o Concurring: Sending goods in substantial quantities is enough bc maker foresees and benefits from sales in other states whether distribution is direct or indirect. o DEFAMATION AND TARGETED WRONGDOING: Calder v. Jones, Keeton v. Hustler:

Intending to and causing tortious injury in forum state confers minimum contacts, as actions were expressly aimed and targeted at forum state. Employees are primary participants of own actions. The more that P can prove that D is forum-directing their conduct, the more likely that D will be presumed amenable to personal jurisdiction. o NATIONWIDE JURISDICTION: GMAC v. Raju: If no jurisdiction in any state, if claim arises under federal law, and if exercise of jurisdiction is consistent w Const. and its laws, then jurisdiction will be consistent under Rule 4(k)(2). Contacts in one particular state can be too minimal but aggregate contacts w all states may not be This can also be done through federal statute. o LONG ARM STATUTES: Reach cannot exceed Const. grasp based on traditional notions of fair play and substantial justice Step 1: Statutory Analysis Due process clause of 14th Amendment: States may only assert jurisdiction over D who have established a significant relationship to the forum state. Due process clause does not actually confer jurisdiction, merely defines outer bounds of permissible jurisdictional power. 1. Enumerated Act Long-Arm Statutes non-resident D can be sued in (P) state on a claim that arises from (D)s activities in forum. Gives courts leeway to reject jurisdiction in case having little to do with the state without making constitutional pronouncements. These statutes may, however exceed due process limits. In that case, courts may simply refuse to apply the statute. 2. General Jurisdiction Statutes Statute reaches to the full extent of the constitution (due process). Collapses the 2 parts of the inquiry (constitutional and statutory) into one. Also is more flexible bc the outer bounds of the statute move as due process definition changes. ***NOTE: 1. The language of these statues varies from state to state. Statute A may say that there is jurisdiction over a D that transacts ANY business in the forum and our claim arises from that, or Statute B may say that D had to transact SUBSTANTIAL business in the forum. 2. Calder v. Jones: In defamation cases, long-arm statutes do not need to apply, if the defendant has purposely aimed materials at forum state. Step 2: Constitutional Analysis State must see if a defendant has sufficient minimum contacts and that it is fair to exercise personal jurisdiction over him. 1. Minimum contacts 2. Determining Fairness - A high degree of fairness. An overwhelming showing that the exercise of jurisdiction would be fair can make up for a lesser contact. However, deliberate contacts must exist before fairness and other issues come into consideration. a. Relatedness - Does the plaintiffs claim arise from the defendants contact with the forum? This can make up for a small amount of contact. i. Note: Relatedness is not always necessary. If the defendant has substantial continuous contact with the forum there can be general jurisdiction. b. Inconvenience for Defendant and Witnesses A defendant is almost always going to complain that this forum is not convenient for him. Burden therefore is on (D) to show that

c. d. e.

f.

this forum is not just inconvenient but that it is unconstitutionally inconvenient to put (D) at severe disadvantage in the litigation States Interests The forum state must have interest in providing a forum for its citizen. (McGee v. International Life Insurance Co.) Plaintiffs Interests P has an interest in suing at home or wherever they want to as long as it does not offset the due process of D. Contractual Relationships: When a party agrees to sign a contract of adhesion with a corporate entity, they have implicitly consented to jurisdiction in the corporate entitys primary place of business. (Burger King Corp v. Rudzewicz) Products Liability: Use of long-arm statutes are not enough, defendant must still have minimum contacts in forum state to have personal jurisdiction there. (World-Wide Volkswagen Corp. v. Woodson)

CORPORATIONS: Foreign Corporations: Not incorporated in the forum state o Must have minimum contacts with forum state o Usually only have minimum contacts if the corporation voluntarily sought to do business in, or with residents of, the forum state. International Shoe: D has no activities in WA except for salesmen living there and working from their homes, earning based on commission. Salesmen send all orders to home office. HELD that there are minimum contacts in WA. McGee v. International Life Insurance Co.: TX insurance company takes over from a previous insurance company a policy on the life of X, a CA resident. D sends new policy, X pays premiums. When X dies, P becomes beneficiary, and sues in CA for payment on policy. HELD that D has minimum contacts in CA, and D can be sued in personam. Hanson v. Denckla: D is a DE bank, acting as trustee of a trust. S, settler of the trust, is a PA resident at the time she sets the trust up. Years later, she moves to FL. Later, Ss children, who are FL residents, want to sue D in FL for the remaining trust assets. D has no other FL contacts. HELD that D did not purposely avail itself of the chance to do business in FL, and so does not have minimum contacts, and therefore cannot be sued in personam there. o If an in-state agent does a significant amount of business on the corporations behalf, then the corporation may be still sued in that state, even if they are not conducting the activities themselves. o Limited liability suit of a corp. is limited to companys assets, not the individuals. o Corporations can be sued in the state where they are incorporated and their principle place of business. o An Internet Site must be intended to target residents of the forum state in order to likely have minimum contacts. INTERNET AND FOREIGN DEFENDANTS: If the exercise of jurisdiction is consistent with the Const. and laws, serving a summons or filing a waiver of service is also effective, with respect to claims arising

under federal law, to establish personal jurisdiction over the person of any D who is not subject to the jurisdiction of the courts of general jurisdiction of any state. 1. Note: (GMAC v. Raju) While he may not be directly engaging in activities aimed at the US, Raju is not avoiding the US, therefore he does have minimum contacts since he has sold products to the US. 2. ZIPPO TEST This is how court characterized activity on the internet. a. ACTIVE Repeated transmission of computer files over the internet. b. PASSI VE Cite only information available to those who wanted to access it. c. MIDDLE GROUND This is where the user exchanges information with the host computer (Courts would examine the level of interactivity and the commercial nature of the exchange of information). d. NOW: Courts focus on whether the website was intended reach targeted customers in the forum state. (Zippo Mfg. v. Zippo Dot Com, Inc.) Countering Personal Jurisdiction: 1. Unilateral or Direct Attack: Unilateral Acts from Plaintiff P dragging D into forum is unlike D personally availing themselves to P. Appear with a Special Appearance to object to courts exercise of jurisdiction. However, during a special appearance, must take extreme care not to raise any objection or argument that the court can construe as a defense on the merits. If you do, then court can conclude that you have waived your jurisdictional objection. a. In the federal rules, as well as in some states, this is not the case (no assumed waiver of objection) b. Regardless, objection must be raised immediately or it is lost. c. If you lose on your objection of personal jurisdiction, you can either appeal at that point, or choose to wait until trial has been decided on the merits and then appeal based on the personal jurisdiction issue. But you only get one appeal at that point, either on the merits or on personal jurisdiction. Cant do both. 2. Collateral Attack: Moving straight up the line properly Going from Trial to Appellate to Supreme. If defendant makes a special appearance contesting his jurisdiction and loses, he must wait until trial court ends to make an appeal. Usually does not work unless you know you are going to win. Can choose to ignore the suit entirely, although this is dangerous, as court may enter a default decision. But, if you ignore it, and they really dont have jurisdiction over you, then any decision made by the court is unenforceable. a. Full Faith and Credit Clause (Article 4 1): Requires states to honor judgments of other states by allowing out-of-staters to use the court system to collect. i. EXCEPTION: Enforcing court may always inquire as to whether the rendering state had jurisdiction in the original action and may refuse enforcement if it did not. (Pennoyer v. Neff) THIS IS A COLLATERAL ATTACK, as D challenges the original jurisdiction in the enforcement action rather than the original action. b. However, you cannot reopen any questions on the merits. By not showing up, court deems that you have waived your defense on the merits. i. You also cannot challenge jurisdiction in the enforcement action if she has already done so in the original action.

3. Procedural vs. Substantive: State courts that have interest in a suit can determine which procedural and substantive law they can apply. SOL has always been a procedural, rather than a substantive law. If a rule is going to change, and we need to change tradition dont go to the United States Supreme Court but let your State legislatures handle it. (Sun Oil Co. v. Wortman) a. Allstate Insurance v. Hague - State must have a significant aggregation of contacts with the parties and the occurrence, creating state interests, such as the application of its law was neither arbitrary nor fundamentally unfair. (Hague, decedent, was a passenger on a motorcycle who died in WN motorcycle driver and the driver of the car that struck the motorcycle were all from Wisconsin. Hagues wife sues in MN, where she moves after suit) b. John Hancock Mutual Life Ins. Co v. Yates - Just going to the state that wants to apply its law is not enough. But court doesnt have to apply it. There are minimum contacts. c. Phillips Petroleum Co. v. Shutts - You cannot apply state law to unrelated claims in a class action suit. However, if the law is compatible with other states then it is left to that state to chose whatever law they law.

NOTICE Rule: You should use the method of notice most reasonably calculated under the circumstances to apprise D of the action. If an address is available, you must mail the notice. This applies regardless of whether case is in rem or in personam. Must also consider: o Timeliness o Adequate information o Reasonable efforts given Looking at Opportunity to be heard: o Interests adequately protected o Very little likelihood that absence creates an error Sufficient notice is a constitutional requirement for assertion of jurisdiction under Due Process 14th Amendment. Fair process has 2 goals: o Accuracy of the outcome o Participation of the effected parties in litigation Cases: Mullane v. Central Hanover Bank & Trust (rejecting Pennoyer standard that caretaker of property could furnish owner with notice) Where bank gave notice in the paper even though it had addresses, this was not sufficient, should have mailed individual notices. Notice in paper as last resort, more acceptable in class actions. However, in this case it would not have been cost efficient to mail notice to out of state Ds, so it is not required. MECHANICS OF SERVICE: Rule: Governed by RULE 4: Summons and provisions for service: Technical guidelines; failure to return service does not invalidate it; Service must be made 120 days after filing of the complaint, but extension may be granted upon showing of good cause. (this is important bc otherwise SOL might bar the re-filing of the suit) o 4(a) summons signed by clerk of court, include name of court and parties name/address of 's atty time to respond statement that failure to respond will be a default o 4(b) Indicates complaint must first be filed with court; or atty must effect service (summons and copy of complaint) o 4(c) anyone over 18 and not a party can serve o 4(e) can serve under laws of state where court sits or where service effected o 4(g) minors and incompetents served according to state laws o 4(h) corporations/associations: serve officer, managing or general agent; considers: degree of control/discretion putative agent exercises whether agent's position is such that service likely to come to attention of those who deal w/litigation o 4(i): Service to US as : to US Atty in district plus notify AG

o 4(j) Serving state/local gov'ts, foreign states o 4(l): proof of service: by affidavit, return not required for valid service o 4(m): time limits for service: made within 120 days after complaint filed but judge can extend if good reason. o 4(n): quasi in rem if unable to obtain jurisdiction by other means. State law to define circumstances and manner of the attachment is to be made. Waiver of service: 4(d) Once waived, party may not later object to sufficiency of service. First make request for waiver of service in writing either via first class mail or other equally reliable means Service in a foreign country: 4(f) is followed when the Hague Service Convention does not govern. US a party to several int'l service treaties. Hague Service Convention exclusive method for serving process when occasion to serve someone abroad. But if state has law permitting service on domestic subsidiary doesn't matter o 4(f)(2) other methods of foreign service: Prescribed by foreign law Directed by foreign authority in response to letter rogatory or letter of request Personal service or mail with signed receipt dispatched by clerk of the court, if methods not prohibited by law of foreign country. o 4(f)(3) allows court to direct particular type of service not prohibited by int'l agreement Territorial limits of service: o 4(k)(1)(A) allows fed cts to borrow state long arm statutes to extend jurisdiction as far as the courts in the state where they sit. (this is why personal jurisdiction inquiry is the same in fed and state cts). o 4(k)(1)(B) parties joined under Rule 14 or 19 and are w/in 100 miles. (bulge rule) o 4(k)(1)(C) when authorized by a fed statute. o 4(k)(2) for claim arising under federal law, service is effective to establish jurisdiction if the exercise of this jurisdiction is consistent with the constitution and D is not subject to jurisdiction in any one state. (this allows fed cts to exercise jurisdiction over foreign D conducting substantial business in the country, though they may lack sufficient contacts w a state). o 4(n) attachment of in-district assets for obtaining jurisdiction to the extent of those assets. This quasi in rem jurisdiction is only to be used when P is unable to obtain jurisdiction over D in the district by other means. Immunity from process: Immune if you come into the jurisdiction for certain reasons, such as unrelated judicial proceedings. o Immunity sometime inapplicable if also amenable to service in the place you are visiting from/outside the state. o Public officials in the execution of their duties may also be immune, or parties enticed into the district by fraud. Service of process and statute of limitations: Suit must be filed for action to be commenced, and stop the SOL clock (toll). o However, when an action is brought in fed ct under state law, must apply the state law SOL clock.

VENUE IN GENERAL: One more hurdle to be jumped before proceeding in a particular court. Venue is often distinguished as being concerned only with the convenience of trial, where as jurisdiction has been said to concern the power to adjudicate. This is not a question about whether a court has jurisdiction, but rather trying to increase convenience and fairness. Change of venue as a response to inconvenience instead of no jurisdiction. Just says there is a more convenient place to hold the trial. Based on statutory and common law, not constitution. SMJ gets us into federal court, but Venue tells us which district court to go to. Venue transfer wont let SOL run out, but dismissal and re-filing may. Rule 12(b)(3) allows parties to dismiss for lack of venue. If you dont raise venue in response to complaint, it is waived. FEDERAL VENUE STATUTE: 1391 Rules for regular transitory cases (aka anything that is not local action). Acts to reduce the choices of venue open to parties. 1391(a) DIVERSITY: Proper venue can be o 1) District where D resides (temporary housing can be residence, doesnt have to be domicile) if all D reside in the same state; o 2) Judicial district where a substantial part of events occurred or where a substantial part of property that is subject of dispute is located; o 3) (As a Last Resort) District where any defendant is subject to personal jurisdiction at the time the action is commenced. 1391(b) FEDERAL QUESTION: Proper venue can be o 1) District where D resides if all D reside in the same state; o 2) Judicial district where a substantial part of events occurred or where a substantial part of property that is subject of dispute is located; o 3) (As a Last Resort) Any district in which any of the defendants may be found. Differences btwn (a) and (b): More choice in diversity claims bc personal jurisdiction is more expansive then may be found. o In diversity cases, state laws are used so venue can be very significant. This can lead to increased forum shopping on the part of the plaintiff. o However, in federal cases not based on diversity, there is less freedom for the plaintiff to choose the venue (may be found), even though the venue choice is already limited. Cases in non diversity bases jurisdiction are governed by federal law. Aliens may be sued in any district and persons from DC. 1391(c) CORPORATIONS: NOTE: ***Applies only to corporate D; corporate P are governed by 1391(a) or (b) o 1) Are deemed to reside in any judicial district in which it is subject to personal jurisdiction at the commencement of the action. o 2) If there is more then one judicial district in a state, then a district where its contacts are sufficient to support personal jurisdiction and o 3) if there is no such district is will be deemed to reside in the district it has the most significant contacts with (1391- place incorporated or has its primary place business). Exceptions: Venue provisions apply except as otherwise provided by law. Look out for conflicts.

1401 for stockholder derivative actions. LOCAL ACTION RULE: Local actions must be brought in the district where the land lies. A local action is a case about ownership, possession, or injury to land (real property) located in the district; includes trespass.

FORUM NON CONVENIENS: Rule: FNC attempts to direct litigation to the most convenient forum. FNC is a discretionary argument. Claiming FNC provides D with some counter-control over where suit may be brought. FNC application is a multi-factor analysis. Considers: o Convenience (not only of the parties but also the court system) o Jurisdiction If both transferor and transferee courts are federal, this is done through 1404 transfer instead. Exceptions: Only transfer to a Foreign Judicial System, or from state to state. FNC only applies to courts that are not in the same judicial system. D must show a strong inconvenience. D may consent to the jurisdiction of the other forum. The law can change to the law of the other forum. The other forum must be adequate and the plaintiff must have a remedy. Unfavorable change in law should not, by itself, bar dismissal under FNC. Change in law btwn forums should not be given substantial weight in FNC inquiry, as this would require courts to interpret law of foreign jurisdictions. o Piper Aircraft v. Reyno: Where there was an airplane crash in Scotland, and suit against manufacturers was brought in US. FNC is at the discretion of the trial court; only overruled if there is abuse of discretion. Adequate alternative forum normally must be available. TRANSFER: 1404 Transfer: Used to transfer cases within the federal courts. Broader than FNC because it doesnt require dismissal. Stops at the borders of the US. Three elements of 1404 are: o Interest of justice. o Convenience of the witnesses. o Where the suit might have been filed originally Cant transfer a case to a district if the P could not have brought the case there originally, even if in the interests of justice and for convenience of witnesses. o Hoffman v. Blaski: Restricted 1404 transfer, also said that consent to a forum by D doesnt count; action must have been fileable in transferee forum without just consent. If consent was allowed, it would be forum shopping for D.

The law selected by the transferor forum would continue to apply after a 1404 transfer, so that you dont get a change of law as a bonus for a change in venue. This is true even when P initiates the transfer. o Ferens et ux v. John Deere Co.: Where a man lost his hand in PA, but brought his suit in Miss. bc the PA SOL had run out, and then moved for a 1404 transfer back to PA on grounds of convenience, the desire to take a punitive view on Ps actions should not obscure the systematic costs of litigating in an inconvenient forum. 1406 Transfer or Dismissal: Applies when venue in the original forum is improper, gives the district court the choice of either dismissing the case or transferring it to a proper forum. 1407 Transfer: Allows actions pending in different districts to be transferred to a single district for coordinated or consolidated pretrial purposes. The transferee forum here is designated only to deal with pretrial issues, and there is no requirement that it be a forum in which the action could have been brought.

SUBJECT MATTER JURISDICTION (jurisdiction over the subject matter Federal ct. or State ct?) In General: Not the reach of the court over litigants, but rather the reach of the court over the types of cases. Need congressional authorization of jurisdiction not outside the bounds of Art. III grant of federal power. Objection can be made by ct.s own initiative (sua sponte); SMJ can NEVER be waived. In state courts, SMJ is pretty much unlimited, depending on the type of court, but in federal court it is limited to diversity and federal question The party seeking to invoke the jurisdiction of the federal court must make an affirmative showing that the case is w/in the courts SMJ. No matter when a deficiency in SMJ is detected, the suit must be stopped and dismissed for lack of jurisdiction under rule 12(h)(3). Justiciability: Art. III places 2 limits on cases for fed. Ct.: judicial power of the US, and justiciability. Standing: o Personal stake in the controversy Direct injury o Causation and redressability o Prudential barriers Sometimes court has used policy arguments to suspend limitations o Role of congressional leg.: Can confer standing where otherwise isnt, i.e. for civil rights. Disputes appropriate for Judicial Resolution: o Advisory opinions Judicial action necessary to resolve dispute, cant make advisory opinions Cant render judgment subject to change by another branch f govt o Political questions, i.e. impeachment Questions of Timing: o Things that were once live controversies can be rendered moot o Prominent exception: Cases capable of repetition yet evading review. FEDERAL QUESTION JURISDICTION (1331) In General: 1331- "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." o Art. III opens the door for congress to authorize arising under jurisdiction, 1331 provides for it. Judicial interpretation of legislation is grudging. o Judicial interpretation of Art. III 2 is broad federal issue is an ingredient in claim. There is NO amount in controversy requirement for Federal Question jurisdiction Federal courts prefer hearing Federal Question Jurisdiction over Diversity Jurisdiction cases, since Federal Question allows Federal Courts to apply Federal law. Rationale Fear that states wouldnt respect federal law Diversity Jurisdiction is concurrent w FQ. 1331 does not confer jurisdiction unless the federal issue is necessary to the proof of Ps claim.

Rule: Federal Question Jurisdiction occurs only when a suit arises under the Constitution and Laws of the US, and only where the Ps statement of his own c/a shows that it is based upon those laws or the Constitution. It is not enough that P alleges some anticipated defense to his c/a which is possibly invalidated by some provision of the Constitution. o Mottley: Free passes on RR; Federal law was a defense. This is artful pleading Well-Pleaded Complaint Rule: Judge looks only at the elements P needs to establish the claim does the claim necessarily arise under federal law? o Is the P enforcing a federal right? If so, FQ case; if not, then No FQ case o Look only at the Ps complaint; do not look at anything the D does (ex. the Ds defenses, or counterclaims). Ps claim must arise under federal law (ignore an anticipated defense, etc.) Role of Defenses: We follow Well-Pleaded C rule bc (1) It would be cumbersome to suspend litigation to wait for responsive pleadings; and (2) D might act strategically in withholding potential fed defenses to defeat jurisdiction. o Declaratory Judgments: Appears to be that action for declaratory relief arises under fed law only when coercive action it anticipates would be under federal law Exception: 1338 Few circumstances where the state court does not have concurrent jurisdiction. (Patent, copyright, trademark, etc.) Scope of Arising Under: Inconsistent treatment: Holmes: A suit arises under the law that creates the C/A Cardozo: Issue of federal law must be an essential element of Ps C/A, and must substantially involve the validity, construction or effect of the law, with the result of the suit depending on it. Holmes Creation Test: A suit arises under the federal law that creates the cause of action. Grable & Sons v. Darue - Federal cause of action over tax seizure that failed to comply with statutory notice requirements under federal law: not only a contested federal issue but a substantial one. o Factors applied here (also applied in Merrell Dow): CHECKLIST FOR ELEMENTS!!! This decision does not disturb the state/federal court balance; there will be so few cases on this, it will not open the floodgates. This was an issue in Merrell Dow, but not in this kind of situation. Federal issue must be all over the case; a central, necessary element in resolving the case. Federal interest is involved in deciding the case (i.e. enforcing tax laws) Congressional view on private right of action is absent, this is not a bright line rule, goes on the scale against Grable, but doesnt outweigh the other factors. (absence of a private right of action is very different from a negative congressional treatment) o These factors are all on a scale, some may outweigh the others. Stack them up and see where the case should fall o Policy is in flux and unpredictable In practice, you should assess the risk!!!

Test for applying FQ: o Federal Issue: Must be a central, necessary element; deciding an issue of applicability of law, not an issue of fact. o Federal Interest: Substantial federal issue, with a significant federal interest in adjudicating it? o Floodgates: In light of the welter of issues, will it upset the federal/state adjudication balance? o Congressional Intent: Any treatment of a C/A? Exceptions: o Smith v. Kansas City Title & Trust Co underlying duty a matter of state law, but federal law is embedded in making the decision. Controversy hinges on whether federal statute constitutional. Sale of bonds was federal interest: state law would keep people from buying the bonds. Rule: The presence of Federal law in a suit does not make it a federal question jurisdiction if initial issue arises (as in this case) out of a State Law Fiduciary Claim, HOLMES TEST FAILS. (even though the court here found FQJ) o Merrel Dow Pharmaceuticals Inc v. Thompson Suit for alleged damage from a drug. Legislative intent revealed no congressional purpose to provide private federal cause of action; Congress indicated wanted FDA to enforce. Rule: The claim was not made directly under the federal statute. The claim was that failure to comply with that federal statute constituted an element of negligence under state law. Whenever federal law serving as an embedded element of state law claim, not a federal action. No fed cause of action if fed law references enforcement by local customs Policy: You do not want the Supreme Court to be able to hear cases like Smith and Merrel Dow b/c it would (1) Allow the floodgates of litigation would be opened; everyone would be getting into federal court and (2) It would go against Congressional intent. o Do not want a bright line rule here because it would not be nuanced or flexible enough to be fair (Although Holmes Creation test may not be nuanced enough to accommodate federalism) We have a welter of issues which FQJ must cover; a bright line rule would not work.

Implied Rights of Action Courts determine if implied fed remedy should be authorized Often will impose injunctive relief in favor of private parties against the fed gov't when there was violation of the Constitution More difficult to imply private right of action for damages against federal officials Private right of action to redress constitutional and federal statutory violations committed under color of state law, but doesn't apply to federal governmental action Bivens recognized damages remedy for 4th amendment violations in absences of affirmative action by Congress But not if an area in which Congress has legislated generally (Bush v. Lucas: 1st amendment damages not awarded because of employee rights legislation)

Four-part test in Cort v. Ash: Is one of the class for whose benefit statute was enacted Legislative intent to create/deny remedy Private remedy consistent with underlying purposes of legislative scheme State/fed law applicable regulator Later cases indicate Court has cut back on this right

Outer limits of Article III Not sure where it is, but protective jurisdiction theory pushed by scholars Lincoln Mills sidestepped whether Congress could create federal forum to adjudicate state law issues in absence of diversity, saying that federal common law would govern such disputes FSIA: suits against foreign states brought in American courts, gives original jurisdiction to fed courts as long as foreign state not entitled to sovereign immunity Filartiga: Alien Tort Statute conferred fed jurisdiction consistent w/Art III since laws of nations always part of federal common law. SC agrees. Art III may also place limits on power of Congress to assign certain federal law disputes to federal tribunals whose judges don't enjoy life tenure DIVERSITY JURISDICTION (1332) Rule: Rationale Fear of discrimination Need to have the amount in controversy Where you are sued in your home state under diversity, you cannot remove MUST HAVE COMPLETE DIVERSITY (Strawbridge v. Curtiss) Article III requires minimal diversity (at least one litigant must be diverse); 1332 requires complete diversity. Congress may therefore move between the two. Exceptions: Cannot remove based on Diversity jurisdiction if you are already in your home state. Members of a class action where the central party is not diverse Interpleader 1359 you cant artificially create diversity jurisdiction in assignment or otherwise. o Cant join parties to permit removal if you dont have a substantive claim against them (fraudulent joinder) Domestic Relations Exception o Wont apply DJ in cases involving issuance of divorce, alimony, or child custody Probate Exception o Wont apply DJ in cases involving administration of a will or estate Determining citizenship; joinder issues Time frame for determination Citizenship determined at filing of complaint Returning to original domicile after having moved still jurisdiction Natural Individuals One domicile: where one intends to return and remain indefinitely. No matter how many

residences. Continues until new one acquired. (Volkswagen case Still residents of NY bc they hadnt arrived in AZ yet.) For diversity need to be a citizen of the US and of the state in which they reside, so expats can't invoke diversity at all Admin of estate = only citizen of same state as decedent 1332(c)(2). Corporations Carden expanded citizenship to state(s) of incorporation and principal place of business (aka nerve center) This contracted diversity because there are more places, decreases likelihood of diversity. 1332(c): congress did not define principle place of business; SC decided on nerve center theory. Direct Actions Against Insurance Companies 1332(c) has special rule for direct actions against liability insurers in which the insured not joined as D: insurance companies are deemed to be citizens of the same state as the insured for diversity jurisdiction purposes. Unincorporated Associations Look at citizenship of all members: Carden Alienage Jurisdiction Permanent resident deemed to be citizen of state of domicile Generally held that if alien and citizen on one side and alien on other side = beyond 1332(a)(2)&(3) Citizens of states not recognized by the US: excluded. Dual nationals Sometimes American nationality deemed dominant, otherwise just defeats diversity American citizens living abroad: can render a partnership stateless Alien corporations: Some hold inapplicable to foreign corporations who should be considered citizens only of state of their incorporation Others hold that world-wide principal place of business in US state = citizen of that state: such a corporation can serve another in federal court American corporations with principal place of business abroad: When sued by an alien deemed citizen only of state of incorporation See also Multiparty, Multiforum Trial Jurisdiction Act Amount in Controversy From judiciary act, not Const. No min required for fed law questions but some states have one. Calculating Amount In Controversy: Holds if in good faith, unless proves otherwise by legal certainty Usually value sought to be gained by , not cost to , but for injunctive relief must look at pecuniary result to either party Pertinence of counterclaims Little case law on whether amount of counterclaim should count to amount in controversy. No court has counted amount sought in permissive, some have for those in compulsory Determining SMJ looks at value of complaint only, possibly compulsory. Attorney's Fees

Divide on whether included; majority says apply only when provided for by contract or state statute Aggregation of claims and AIC 1 w/more than one claim against can aggregate, need not show relationship between claims (R 18) Separate s seeking similar but distinct relief can't be aggregated Single can't aggregate claims against multiple s Separate s can aggregate claims for common and undivided relief i.e. house jointly owned No general rule for aggregating punitive damages Joint and several counts. Alternative liability treated like joint and several. Where P1 satisfies AIC and P2 does not, ct has supplemental jurisdiction over P2s claim, but only as long as the claims are against a single D. (Exxon Mobile v. Allapattah) Class Actions Each named 's citizenship counts but not unnamed ones If aggregate amount in controversy exceeds $5mil, jurisdiction under CAFA. 1367 permits supplemental jurisdiction over claims by absent class s for less than amount in controversy as long as named 's claim met requirement
IS THERE DIVERSITY JURISDICTION? Does Alienage Jurisdiction apply? (Are all parties are foreign countries or foreign citizens?) Is a Corporation a party? (Corporations are deemed for diversity purposes to be citizens of the state where they are incorporated and their principal place of business) Is Diversity complete? (No P may be a citizen of the same state as any D) Does the Amount in Controversy exceed $75,000 for every P and every claim? o If NO: P cannot aggregate claims against different Ds to get to 75,000 Once P meets the jurisdictional amount against one D, most courts wont let P join other D for less than the amount. In class actions, each P, but not unnamed Ps, must have a claim greater than 75,000 (this is because supplemental jurisdiction applies in this case) Does at least one P have claims against a single D > 75,000? If so, then the other Ps dont have to meet the amount in controversy, as supplemental Jurisdiction applies. If not, then the jurisdictional amount is not met, and aggregation among the Ps is not allowed.

SUPPLEMENTAL JURISDICTION In General: Must be same controversy, subject, transaction, so wont have a Federal Question case joined with a diversity one. Constitution grants court power to hear an entire case under Art. III. 1. Must have one P with amount in controversy if its a Diversity case. 2. Rationale is based in efficiency in using judicial resources. Pendent (P's joinder of add'l claims)/Ancillary Claims (D or third party claims): Gibbs: P asserting both fed and state claims against D. Rule: The state claim related/anchored to the federal claim, part of the common nucleus of operative fact, giving rise to the federal claim and therefore being permitted to travel along with the federal claim even though it had no independent federal subject matter jurisdiction itself.

Cotton Exchange: Assertion of a fed claim by P and compulsory state counterclaim by D. Rule: Logical relationship needed between claim, counterclaim. Federal claim and a state counter claim (compulsory counter claim) which arises out of the same transaction or occurrence that gives rise to Ps claim. Additional Parties: Kroger: D1 impleaded D2 into a diversity case, P brought non-SMJ direct claim against D2. D1 claim was dismissed. Discovered at trial that D2 was actually not diverse from P. Court held that there wasnt diversity, and dismissed claim, but also implied that jurisdiction would be proper over compulsory counterclaims, cross-claims and third party claims. Emphasized the difference btwn a claim by a defending party brought in against its will and P, who presumably had the choice to sue all parties in state court. Finley: P sued D1 (US government) and D2 (non-diverse state claims), and it was held that there was no implication in the statute that granted jurisdiction over D1 allowing other claims, even though it was all the same nucleus of fact. Zohn Do unnamed members of the suit without the jurisdictional amount cut it? Aldinger: P sued D1 with federal claim, and D2 (county) with a state claim. Attempt at pendant party jurisdiction. D2 claim was not allowed, bc it was congressional intent to prevent federal civil rights cases against counties, and therefore there was no statutory grant of jurisdiction over the pendant claim. 1367 1367(a) Except for as provided in (b) and (c), or expressly in fed statute, fed courts have Supplemental Jurisdiction over all claims formed by the same case or controversy under Art. III as the original claim, including joinder and interveners. This provided the necessary statutory authority to hear related claims like in Gibbs. This is now the governing law, not the cases above. Under this, Aldinger and Finley would have been upheld. 1367(b) Placed limitations on certain claims by Ps in diversity cases; court cannot hear the following types of claims when they do not fall under 1332 diversity requirements: Claims by Ps against persons made parties under rules 14, 19, 20, 24 Claims by persons proposed to be joined as Ps under 19, or seeking to intervene under 24 Attempting to prevent any circumvention of Strawbridge complete diversity requirement Preserving the ruling in Kroger 1367(c) Authorizes the court to decline jurisdiction over supplemental claims for reasons similar to the four in Gibbs Applying 1367: Three-part analysis: o Is there constitutional power under Art. III to hear the supplemental claim? (see Gibbs) o Is there a statutory grant of jurisdiction over the related claim? (see 1367(a) and (b)) o Based on various discretionary factors similar to those in Gibbs, should the court hear the related claims? Exxon Mobile and Starkist: When at least one in action satisfies amount in controversy, can have

supplemental jurisdiction over claims of other diverse s in same case/controversy even if their claims don't meet a-i-c. Can't have supplemental jurisdiction over claims made under Rule 19 or interveners under Rule 24, but nothing excludes Rule 20 or 23 s. REMOVAL JURISDICTION (1441) Form of federal subject jurisdiction permitted by congress, can remove cases that could have been filed in
federal court in the first place (fed ct must have original jurisdiction) Allows D, after P has chosen a state court, to second guess by removing to fed ct in that district, on the rationale that D as well as P should have the option to choose federal ct for cases within fed jurisdiction

1.

2.

3.

4. 5. 6.

7.

o Only D can remove; all D in the case at that time must agree to remove. o D in a counterclaim cannot remove Cant remove to another state court or a federal ct in a different district The removal statute applies to cases, not claims, so removal will take Ds entire suit with it. Removal is a one-way street A D who is properly sued in fed ct cannot remove to state ct. 1441(a) To be removed under 1441(a), the claim must be able to be filed originally in fed ct. a. The usual venue rules do not apply in removed actions, although parties may move for transfer afterwards. b. D may allege in notice of removal any facts necessary to demonstrate grounds. 1441(b) a. A diversity case is only removable if none of the parties is a citizen of the state in which suit is brought. (Cant remove from your home state ct in Diversity cases) i. However, this doesnt matter if there is FQ jurisdiction that is just as strong as the diversity jurisdiction. b. Notice of removal must be filed within 30 days of D receiving Ps pleading, or 30 days from when info re: fed jurisdiction is filed. In diversity cases, this must be within 1 year from original filing date. 1441(c) P must claim that case is not w/in fed jurisdiction bc of procedural issues w/in 30 days, moving for case to be remanded back to state court. This motion must come before 30 days after removal, or the objection is waived. a. Motion to remand based on SMJ can be made at any time prior to final judgment. b. When there is a separate and independent claim arising under federal law, this can be a basis for removing entire case. This can help D when P attempts to make a case unremovable. 1441(e) Court has power to refuse an amendment or allow it and remand the case (depending on whether they think the P is amending for valid reason) 1441(f) Fed ct is not precluded from hearing a case simply bc the state ct lacked jurisdiction over it (this wasnt always the case.) 1442-3 Broader removal for protected parties (greater need for a protected forum). Exceptions from Congress (i.e. fed officer sued in state court under color of federal authority; civil rights removal) Counterclaims a. D can't remove by asserting even a compulsory counterclaim b. D required to file independent federal action for which P would assert original claim by way of counterclaim

c. Most courts won't count counterclaim when determining amount in controversy for diversity purposes Voluntary-involuntary rule: Prevents from removing when state court dismisses claims against nondiverse s on the merits unless has taken a voluntary act that makes case removable. Fraudulent misjoinder: removes case on the basis that lack of diversity only exists because has improperly joined a nondiverse party in violation of state joinder rules Removal and complete preemption: Narrow category of cases in which can remove on basis of preemption defense: Congress taking powerful interest completely preempts any state law causes of action such that a claim which comes within the scope of the federal statute is based on federal law even if pleaded as state law, even if Mottley test unsatisfied Labor Management Relations Act Employment Retirement Income Security Act (ERISA) National Bank Act Foreign states and 1441d Any civil action brought in a State court against a foreign state may be removed by the foreign state. Includes subdivisions thereof and even corporations owned by foreign state Removal procedures (1446-48) Notice of removal must be filed in district court Copy of notice filed in state court Motion to remand back to state court within 30 days after removal notice Immediately remanded if appears no SMJ before final judgment Notice of removal filed within 30 days after receipt by of a copy of initial pleading If not initially removable, within 30 days of any filing from which it appears case has become removable Not after one year of initial filing to remove for diversity (1446b) Order to remove generally not reviewable for appeal except when removed under 1443 (see 1447(d) but SC held they could be reviewed on writ of mandamus. Removal a waivable right Fed procedure/rules apply in removal

JOINDER OF CLAIMS AND PARTIES Three questions to keep in mind when looking at joinder (CHART): a. Is the rule compulsory or permissive? b. Is there supplemental jurisdiction for this kind of a joinder of claims or parties? c. Is there claim or issue preclusion?*
Rule 18 13(a) 13(b) 13(g) 20 19 14 24 Compulsory? No* Yes No(?) No* No* No* No* No* Supplemental Jur.? Yes for Related, No for not related Yes No(?) Preclusion* Yes for Related, No for not related

* = Might have a preclusion issue later

Rule 82: The rules themselves do NOT create SMJ. Joinder is analyzed separately from SMJ.

If in doubt as to whether a claim is compulsory or permissive, assert it just to make sure. The worst thing that can happen, is the judge says this doesnt meet 1367(a) supplemental jurisdiction, but you would still be able to assert that claim later on under res judicata. Rule 17(a) Suit must be brought in the name of the real party in interest. (i.e. person with the substantive right to recover o Look to citizenship of this person to determine whether diversity exists Joinder of Parties:

When a number of claims involve a single transaction or occurrence, it makes sense to combine them. This increases efficiency and prevents incongruous outcomes. Also, ct cannot dismiss for misjoinder of parties (Rule 21). o Rule 20(a) Allows but does not require parties meeting the criteria to be joined. (1) Initial joinder of parties, authorizing Ps to sue together if they assert claims arising out
of the same transaction, and involve a common question of law or fact. (2) Allows P to sue multiple D in a single action if the same criteria are met. o Rule 14 (a)(1) Gives D limited voluntary right to implead new parties against whom they have claims related to the main action new party must be liable to D for all or part of Ps claim. May be impleaded for contribution to damages (or all damages), or indemnity against an insurer. This is distinguishable from situations where D contends that the new party is liable directly to P but not D. Third partys liability here will therefore depend on the outcome of the main claim D should implead within 10 days of answering complaint. (a)(2)(A), (C) Impleaded party may escape liability by asserting defenses defeating Ps original claim or Ds derivative claim. (B) 3rd party D may file counterclaims against 3rd party P (a)(5) 3rd party D may implead further parties

(a)(2)(D) and (a)(3) P and 3rd party D may assert claims against each other as long as

they arise out of the same transaction. (a)(4) Ct may separate impleader and original suits if it deems appropriate. NOTE: If 3rd party D is not diverse, and the original claim is under Diversity

Jurisdiction: If original D and 3rd party D are from different states, could still be DJ; otherwise, there will usually be Supp juris over a proper impleader claim under 1367(a). NOTE: 3rd party D is disregarded in determining whether venue is proper o Rule 19 Persons not sued by P may be ordered to join; 3 step process for determining whether they should be added: (a) Parties to be joined if feasible: (Step 1: Should be made party to orig action if) (1)(A) If the court cannot accord complete relief in their absence; (1)(B)(i) If the party has an interest in the subject matter of the action, and

their ability to protect that interest will be impaired if they do not participate; and (1)(B)(ii) If they have an interest in the subject matter and adjudicating the case without them might leave one of the existing parties exposed to multiple or inconsistent obligations (b) What to do if absentee should be joined but cannot be: Court can go forward w/o them; dismiss the case; or go forward, trying to craft judgment to appropriate relief to parties before the ct. Judge should consider whether in good conscience and equity the case should

proceed, as well as: o To what extent a judgment rendered in persons absence might be prejudicial to the parties or the person o Whether protective provisions can lessen the prejudice to the person o If judgment w/o the person will be adequate among the other parties o If P will have an adequate remedy if action is dismissed due to inability to join person o Rule 24 Parties not sued by P may intervene (a) circumstances in which absentee has the right to become a party If authorized by statute If they claim an interest in property/subject matter of the action; not allowing them to intervene would impair the case; and their interest is not adequately represented by those already parties (b) permissive intervention, where court may allow an intervenor based on its

discretion.
Parties who have a stake in litigation going on around them, usually corporations or institutions of some kind worrying about what the law will be, and want in on the legislation Notice the symmetry between rule 19 and rule 24 Alternatives: o Could ask to be amicus curia o File some separate lawsuit over same issue and move to consolidate under rule 42(a)

1367(b) In a diversity case, P cant go back and amend complaint Cannot attack a civil rights judgment WHEN YOU COULD HAVE INTERVENED o At least in 24(a) there is a res judicata-like consequence for not intervening

o Rule 22 Interpleader; allowing someone in possession of property to join in one proceeding all conflicting claims. Dont need complete diversity for interpleader actions; just minimal diversity.
You need both personal jurisdiction and subject matter jurisdiction, plus there is a 100 mile bubble around the district court that you must be within.

Joinder of Claims: Once parties are properly joined in a suit, they may assert additional claims against opposing parties. Even if you dispose of the original claim, can still proceed on counter and cross-claims (Rule 13(i)). o Rule 13 Authorizes a defending party to assert claims back against a party who has claimed against him. (a)(1) Compulsory counterclaims are those arising from the same transaction or occurrence. Must assert in the original action or lose it. These claims are usually covered by supplemental jurisdiction. (a)(2)(A,B) Exceptions: claims subject to another pending action, and where the ct established power over D in a way that does not establish full in personam jurisdiction (b) Permissive counterclaims may be completely unrelated to the original claim (ct will likely order a separate trial) (f) Can assert the counterclaim as an amendment (w/ leave of the ct) (g) Provides for assertion of cross-claims arising out of the same transaction as the main claim. Joinder of these is optional (permissive). Can it help grant full relief and help make a complete determination on all issues? Once you have asserted a related cross-claim, then you may assert an unrelated one under 18. (Dont have to worry about preclusion for unrelated claims though) o Rule 18 Authorizes a party seeking relief to join claims against that opposing party. Broadest of the basic joinder rules. (a) Can add unrelated claims against the same party, dont have to arise from the same transaction. This applies to any party seeking relief from another party. If unrelated claim does not have its own SMJ, then ct can sever under 1367(a).

PLEADING, DISCOVERY, SUMMARY JUDGMENT Modern Pleading Practice: 8(a)(2) asks for short and plain statement of the claim showing that pleader entitled to relief: notice pleadings Need not reply to 's answer. Can be amended under 15(a), (b) Candor: Rule 11 Factual support necessary for claim Garr v. U.S. Healthcare: attorneys not conducting own independent inquiry reprimanded under Rule 11. Burdens: Burden of Pleading: which party obligated to introduce particular matter If fails to raise matter for which has burden of pleading then vulnerable to 12b6 If fails to raise matter for which it has burden of pleading can't raise that defense at trial Burden of proof: Producing evidence (burden of production) Persuading trier of fact (burden of persuasion) In many cases legal practice/custom dictate where burdens lie, else determined by policy. Sometimes burden of pleading opposite from burden of proof Opposite sides for pleading/proof i.e. in nonrepayment of a loan (8(c)) Contributory negligence Most jurisdictions assign burden to , some make it part of 's pleading to show absence of it. 8(c) designates as affirmative defense to be pled by in the answer After pleading state law burden of proof applies Drafting the Complaint Detail: Statement of a Claim under Rule 8(a)(2) Bell Atlantic Corp. v. Twombly Used to be unless it appears beyond doubt that can prove no set of facts in support of his claim which would entitle him to relief Now need enough facts to state claim to relief that is plausible on its face, not just conclusory. Facts must suggest a valid claim, not merely be consistent with one. Difficult to tell if restricted to just antitrust cases, but then see Iqbal. Some judges say that means general shift, Posner says law still the same except in weird antitrust/qualified immunity cases
NOTES: Motion to Dismiss: On a motion to dismiss, the judge must accept all factual allegations as true. (if all of this is true, does this equal the possibility of winning down the road, or does it make winning plausible?) Dont want to be too burdensome on a D who did nothing wrong Summary judgment serves as a checkpoint to make sure that the facts CAN lead to P winning, after the judge assumed that the alleged facts were true at the pleading stage. (did discovery produce the proof?)

Iqbal v. Ashcroft NO plausible allegation that there was intent to detain them because of race; plausibility again a very subjective, slippery concept.

Both at odds with 9b about state of mind Pleading special matters (Rule 9) 9(b): party must state with particularity the circumstances constituting fraud or mistake 9(g): special damages, i.e. type that don't usually result from conduct alleged Rule 9's list is exclusive due to 8(a)(2) But statutes may require greater specificity, i.e. strong inference construed to mean need to show just as likely as any other inference jury may draw Complaint too detailed? Some say 8(a)(2) the minimum and 9(b) the maximum since complaint that's too long not specific enough, though some say mere length not enough
Could inadvertently plead yourself out of court, by providing so much information that it presents a valid defense for . Why would you over-plead a case? (i.e. factual allegations) Kick the complaint over from being possible to plausible. In Iqbal, didnt have access to the facts, but if you do, include them to overwhelm and impress the court and other parties. Do you need to plead personal jurisdiction? Not required, but it doesnt hurt. The minimal pleading requirements in the rules are just the minimum. Do not need to plead statute of limitations, but may anticipate a defense. Excuses: They left a sponge in my abdomen, but I didnt discover it until 18 months after, and thats when SOL begins to run, I was a minor, other excuses. These dont work for wrongful death

Asserting Jurisdiction: 8(a)(1) says need to show evidence of diversity jurisdiction.

Specifying a Legal Theory: Some states require that allege legal theory/ies in pleading, not in Rule 8 but might include anyway. Rule 10 describes form of pleadings, including captions and separate statements 10(b) mandates separate counts only when claims founded on a separate transaction or occurrence and if doing so would promote clarity 8(d)(2) permits party to set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses Pleading in the alternative: Freely permitted under 8(d)(2) but subject to Rule 11 requirements so alternatives have to truly be unknown
Clearly you can plead in the alternative, pleading alternative legal theories. (i.e. it was either ice on the wing or ice on the engine) Cannot plead in the alternative, however, when you are expected to know which argument is accurate

Ad damnum clause: wherefore clauses. Little function except to comply with 8(a)(3). Demand clauses, may be freely amended at any time and court not limited by clause in awarding relief Doesn't preclude jury trial under 38(b) Some districts prohibit pleader from asserting sum certain, just assertion that will exceed jurisdictional requirements Usually during default, sum certain awarded automatically. Otherwise court schedules hearing to determine amount of judgment (Rule 55) In no event may default judgment exceed or be different in kind from that requested in the complaint (Rule 54(c)) Motion to Dismiss: The Answer: Amendments to the Pleadings: Discovery:

Unilateral Disclosure Adversarial Discovery Obstacles to Discovery Attorney Client Privilege Work Product Procedures to Block and Compel Discovery Summary Judgment:

LAW APPLIED IN FEDERAL COURT

PRIOR ADJUDICATION/PRECLUSION