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Professor Lecture

11/23/2012 4:11:00 PM

8/21/11 pgs. 1-12 An Overview of Civil Procedure The Idea and Practice of CivPro: Locating Procedure Civil procedure includes many different things how we define truth and justice, lawyers relationships with their clients/ profession/ courts, and ultimately varying human characteristics such as greed, oppression, and venality Substantive law: the rules governing behavior in everyday life o This deals with property, criminal law, torts, and contracts (or obligations) o However, the procedure of the law is something only for the insiders AND this carries great importance to those in the legal profession Litigation: the process of carrying out a lawsuit o Procedure includes everything from the etiquette of battle it starts with defining the initiation, then moves to development, and ends finally with the conclusion of the case o Lawyers deal with pleading, forum selection, joinder, remedies, and discovery in procedure We take procedure so seriously because it captures our ideas about the acceptable forms of settling a dispute it mirrors our most basic notions of fairness and the meaning of justice o It captures the rules of how we do everything plus our reasons behind those actions o We use procedure because we dont want to leave things up to chance a dispute should be decided after looking at all the different factors it involves o Adjudication the process of deciding a dispute, or the

judgment handed down The Text Hypo on page 2 shows procedural issues lawyers encounter through to development of a case Clients, Lawyers, Procedure, and Strategy Once a client has a lawyer, there are two major consequences: the lawyer and client will have to split up responsibilities, AND the legal system will have to decide how to deal with issues that arise from this division of responsibilities

o First, the major decisions about the goals of litigation rely on the client A lawyer can be disbarred for filing a suit, settling a case, or declining a settlement without consulting his/he client However, the lawyer deals with tactics: what court to sue in, whether to request a jury trial, etc. The lawyer must have a good grounding procedure When a case comes around, two jobs arise for the lawyer: What principle of law determined who prevailed in this situation? Which lawyer for which side picked this particular fight and why? AKA what tactical advantage was he/ she hoping for? The legal system treats the lawyers choices as if they were the clients choices (lawyer is only the agent acting for the client) o Look at the example on pages 2-6 o While working on a case for a client, it is very important to

take all the right steps to insure that your client will have the best chance to win his/her case Where can the suit be brought? Once the client has chosen his/her lawyer, then the lawyer will start making decisions that may have consequences: the first decision to make is where to bring the suit o The lawyer must first decide if he/she has options for where to bring the suit based on advantages Deciding where to file a suit will often force the other side because they will decide not to pursue the lawsuit they will settle instead The lawyer will choose the court based on preference of location o If you live in Louisiana, it would be cheaper and more convenient to bring the case to an LA court than somewhere in Texas o Also, you may know judges in Louisiana and the juries may be more sympathetic to your client because of personal history or ties to that community

o Also, you may be trying to avoid certain judges because you may know they are unsympathetic or ill-tempered o The lawyer will also need to choose between federal or state court: Federal judges are appointed for life, whereas state judges are elected state court may be best when the suit applies political pressure to the judge Also, federal court is larger so juries will have more people being pulled from different areas Also federal court tends to have smaller dockets of cases waiting to hear trial, so it would go on for a shorter time than a state court o Second, the lawyer will need to know where she actually can bring the suit, which deals with three different elements: personal jurisdiction, subject matter jurisdiction, and venue Personal jurisdiction: this deals with part of the constitution that says no one can deprive any person of life, liberty, or property, without due process of law The courts cannot exercise power over Dodge unless the state in which the court sits has some connection to him or to the reason the suit is being filed The Supreme Court wrote this out for all courts to follow it focuses on the rights of the defendant, not the plaintiff Subject matter jurisdiction: most courts are specialized to hear only certain kinds of cases, but every state has a court that has generalized jurisdiction (they can hear any case) o These courts are normally called Circuit Courts, but they are also called district courts, superior courts, court of common pleas, etc. o All federal courts have limited jurisdiction, and Congress decided which courts can hear what kind of cases o The cases tried in federal courts either 1) because the nature of the claim resides under the Constitution, treatises, or laws

of the US or 2) because of the citizenship of the party involved o Venue: the place of the trialq11 Service of Process: once you have found which court to bring the suit to, you must start to notify the defendant of the suit o First you would draft a complaint, which you would keep copies of for you and your client, one to go to the defendant, and the last to go to the court o There are two ways to inform a defendant in a case about the suit: 1) to mail a copy of the complaint that they must sign OR 2) if the defendant refuses to sign it, then you will have to go down to the clerk of court to hand in a summons o The summons and complaint will need to be signed and sealed by the clerk of court, and then it will be delivered to the defendant by either a private process server or a Federal Marshall Motion to dismiss: parties can file a motion to dismiss a case because of two things o A facial attack of the sufficiency of the complaints allegations

as to subject matter jurisdiction; OR o A challenge to the actual facts upon which subject matter jurisdiction is based Exercise on page 9 1. They arent asking that question because the defense only wants to dismiss the case instead of letting it go on before a court 2. A) It wasnt enough because he was not living in Missouri at the time of his death nor for about a year before he died. He did not make any real plans to return to Missouri and establish a residence there with his wife. B) If they had signed a lease in Missouri, the intent to move somewhere else would have been established thus proving that he was going to be domiciled in Missouri. 3. A/ B) I think it means that they have to find more evidence before they can bring the case back into court again (as long as it was dismissed without prejudice from the court?).

4. A) she wanted to get the case dismissed because going through a trial would have accrued a lot of money and time and digging into her personal history, so to cut all of those things out was why they filed to dismiss it. B) 5. A) The lawyers probably had to file motions and give something to the court that explained all the background to the case or they heard testimony from people? You would contact the family of the deceased, get records from people that lived in both areas, and gather as much factual evidence from people and bills that you could. B) 6. A) I think you would have to discuss when to file the motion with your client and the laws because of statutes of time limits. B) When thinking about civil procedure, think about playing a game First, you need to know the rules of the game Second, you should know your opponents AND Third, you should know your objectives of the game When the game ends or your case is decided, then you will receive your verdict As a society, we want our cases to show us truth and justice in a fair way the correct person will win the case However, when you are waiting for your verdict, you will want to win lawyers do pursue cases simply wanting to win o However, the rules are set up to give us truth and justice ultimately at the end A lawsuit is a gamble The Constitutional side of Civil Procedure Jurisdiction the power and authority of a court o Personal jurisdiction the power of a court over an individual o Subject matter jurisdiction the power and authority of a court to hear this certain type of case This also deals with general jurisdiction and limited jurisdiction Federal court has limited jurisdiction, whereas states have general jurisdiction o The federal government can only hear cases that deal with a federal question either federal law or the constitution OR partys citizenship

A dispute between people of two different states and the case must deal with more than $75,000 o Erie what law does the federal court apply in a diversity case dealing with parties of different citizenship The Details of a Case Incentives to Litigate and Pleading will end the semester How to prepare for class Read and brief all cases Study all the rules that come up with cases answer the notes and problems that follow each hypo Outline at the end of every section

The Principle behind Personal Jurisdiction Think back to when you were a kid you and your friend got into trouble you will not be disciplined by your friends parents because they arent your parent Basically, if a court doesnt have power and authority over a party, then that court cannot punish that person o They will normally file a motion to dismiss the case because the court does not have PJ over them Even if you dont live in a certain place, you can still be sued somewhere because of different things: o You go on vacation somewhere and commit a crime o You own property somewhere else even though you dont live on that property o The internet because of things you wrote about the other place

Hawkins v. Masters Farms ,Inc. --Facts Creal was killed while his automobile was struck by a tractor owned by Defendant just south of Troy, Kansas. At the time of his death, Mr. Creal was living in Troy, Kansas. His death certificate lists Kansas as his residence. Until his death, Creal retained certain connections with the State of Missouri. He applied for a Missouri title and license for his van/ he

applied for Missouri automobile insurance/ he renewed his Missouri drivers license, etc. Plaintiff, the executor of Creals estate, brought an action against Defendant in Federal district court, alleging diversity jurisdiction. o Defendant disputed that there was complete diversity between the parties, and moved to dismiss. --Issue = What constitutes sufficient diversity of jurisdiction for bringing an action in Federal court based on diversity jurisdiction? --Holding = (D)s motion to dismiss is granted --Reasoning A persons domicile is taken from the persons physical presence in a state coupled with an intention to remain there. A court reviewing a facial challenge must accept the plaintiffs factual allegations regarding jurisdiction as true. As the party seeking to invoke Federal jurisdiction, Plaintiffs bear the burden of proving that jurisdiction is proper. For purposes of determining whether diversity jurisdiction exists, a person is a citizen of the state in which he or she is domiciled. For adults, domicile is established by physical presence in a place in

connection with a certain state of mind concerning ones intent to remain there. --Significance In holding Kansas as Creals domicile, the court focused on his apparent intention to remain there. Specifically the Court referred to the fact that Mr. Creal had had moved his clothes, some furniture, pictures, photo albums, and other memorabilia into the home he shared with Mrs. Creal and her children; he contributed to household costs; and he purchased a new bedroom set with his wife 8/23/11 pgs. 15-33 Stating the Case: The Lawyers responsibility A complaint asks the court to use its power to grant plaintiff relief The people who have this power also have the right not to invoke the complaint for improper reasons or use Bridges v. Diesel Services, Inc.

--Facts Plaintiff is James Bridge and the Defendant is Diesel Services Inc. the complaint is under the Americans with Disabilities Act (ADA). Bridge believes that he was dismissed from his job because of his disability, thus violating the ADA The case was dismissed because of a lack of administrative remedies basically, the lawyer forgot to file a complaint with the EEOC which is stated clearly as a condition to be met before proceeding with this kind of suit The defendant filed a motion for sanctions on the lawyer because he failed to file all the correct paperwork before filing the complaint --Issue: Should the court grant sanctions for the defendant under Rule 11 of the Federal Rules of Civil Procedure? --Holding The lawyer had already figured out his mistake and was proceeding to fix his mistakes PLUS he filed a motion for suspension (P)s counsel did not display a competent level of legal research, because if he had, he would have known about the EEOC filing requirement. But the court decided not to impose sanctions, because the prime goal of Rule 11 sanctions is deterrence of improper conduct and in this case, monetary sanctions are not necessary to prevent future misconduct. --What happens now? The court could have sanctioned the lawyer for his failure to file with EEOC, but they recognized a few things: o They saw that the lawyer only made a procedural mistake, not a substantive one he corrected his mistake right after he was informed Instead of sanctioning the lawyer, they decided that he had learned his lesson on his on without any need for real punishment The court also dismissed the case without prejudice, meaning the lawyer can re-file the complaint once he has met all the conditions of this kind of suit

--The court also makes a distinction to show that Rule 11 is only to be used in situations where the lawyer has gone above and beyond to mess up a case it is not to be used when someone makes a silly mistake However, if and when the lawyer does re-file the complaint, he must show that he is competent he must do a stand-up spotless job on this case because the court will be watching for any mistakes --Rule 11 of the Federal Rules of Civil Procedure All lawyers are subject to sanctions and punishments if we do not follow all the rules and do the research we have to do in order to file motions, pleadings, complaints, etc. Malpractice and violations of the rule of ethics can come up through this rule if the lawyer is found to have violated this rule This also takes a huge dig on your reputation as a lawyer they even said in the decision that the lawyer was incompetent o That will stick with the lawyer for a while other lawyers will know, possible clients will be able to find out, and judges will remember what wrongs you have committed in court While the sanctions can be lenient like this one, judges can decide: o to dismiss your case completely with prejudice, o make you pay monetary reparations, o bring your law firm into the case, etc. Always do your research and MAKE SURE you do exactly what you need to do file anything or make any moves with a case or suit you are pursuing

Notes and Problems on pg. 14-15 1. The lawyer did not meet all the conditions for filing this kind of suit because she failed to file a complaint with the EEOC. The lawyer should have done more research on this type of case before she filed the complaint in order to discover what conditions and requirements were needed for this type of case. The lawyer violated warranted by existing law in Rule 11b2. 2. A) The word in Rule 11c is it must not be filed if corrected within 21 days. B) I think the court could have been more strict on the lawyer because she did not follow procedure for filing this type of case because she simply did not do the research for it she should be thankful they did not do

anything worse to her, like monetary sanction or dismissing the case without the ability to re-file. 3. The defendant is promised constitutional rights by the US, and one of the those rights is that they will have due process of law. The defendant had a right to file the sanction because if the court would have pressed on, then the time limit would have been cut short thus not allowing the defendant to prepare their case for the suit. B) ?? --Federal Rules of Civil Procedure These rules are like statutes and the constitution in that they state general rules, not instances and how those should be handled specifically However the rules do not differ from the statutes in 2 different ways: o The Rules are not directly enacted by the legislature Congress empowered judges in 1935 to write these rules with a statute o The Rules may only deal with practice and procedure they cannot affect any topic concerning the Constitution There is a thin line between substance and procedure in the legal profession For example, the judges are not allowed to write a rule the governs how to deal with damages from a breach of contract that is only a power of Congress However, the judges are allowed to write a Rule concerning the procedure to file a suit based on damages from a breach of contract The original Rules were not written by the justices, nor do the justices themselves amend the Rules the Chief Justice of US Supreme Court appoints lawyers, judges, and professor to different committees o Committee on Civil Rules considers proposed amendments and changes to the legal profession; holds public hearings, produces changes based on those hearings, and submits the results to the Standing Committee

o Standing Committee on Rules of Practice, Procedure, and Evidence further considers and refines the amendments, then passes them on to the Judicial Conference o Judicial Conference of the US presided over by the Chief Justice of the US Supreme Court; this is the senior administrative body of the federal courts, and it deals with judicial discipline, assigning visiting judges, approving requests for new courthouses, etc. o Passes on proposed amendments to the Supreme Court o Supreme Court it takes along time to get here & and so most Rules are approved by this point (although some judges have dissented) o However the proposed Rule is still not a law o Congress the proposed Rule is then passed onto Congress before May 1 of that year, and Congress has till December 1 to amend the rule or pass a statute against it Some minor changes have taken place to the Rules (like adding a holiday) while some have been major (creating modern class action)

These Rules do not only affect the federal courts for which they were created some states have adopted the Federal Rules as heir own procedure for lawsuits --The Complaint: How are they filed? Complaint: the initial pleading that starts a civil action and states the basis for the courts jurisdiction, the basis for the plaintiffs claim, and the demand for relief Bell v. Novick Transfer Co --Facts Plaintiff filed a complaint alleging that the infant Plaintiff, Ronald Bell, was driving in an automobile on Marylands public highways, when he was run into and struck by an automobile-tractor owned by the Defendant. The complaint further alleged that the driver of Defendants vehicle operated it in a careless, reckless, and negligent manner.

The complaint also alleged the injuries and damage, and that they were the direct result of negligence on the part of the Defendant --Procedural History (D) moved to dismiss the complaint because o 1) state a claim against the defendants, o 2) it claims that the plaintiffs were injured because of the negligence of the defendants, and o 3) it fails to specify what the acts of negligence were --Holding & Reasoning: Defendants motion to dismiss was overruled. The Federal Rules of Civil Procedure, specifically Rule 8, only require a short and plain statement of the claim showing that the pleader is entitled to relief. Defendant is also not entitled to a more definite statement by motion under Rule 12(e). --Discussion. Where a Defendant needs further information to prepare his defense, his appropriate recourse is not to file a motion to dismiss, nor to file a motion under Rule 12(e) for a more definite statement but instead to obtain the information by interrogatories under Rule 33.Federal Courts only follow Federal Rules even if they hear cases from state court --What is official Form 9 in Appendix? Notes and Problems 1. The defendants probably want to know exactly what types of negligence took place so that they can either put together a defense as a group, or move on with separate defenses. A) For the advantage of his case, he does not need to tell the defendants everything and vice versa. B) Yes it would. 2. A) _____?? B) _____? 3. A) The suit was originally filed in a district court in Maryland. B) Yes it was a mistake because Maryland maybe would not have allowed the complaint to move forward because it did not include more detail about the case. --The Response: Motion and Answers Once the defendant has been notified of the suit/ charges against him, he must give a response the defense action

o In the example case of Peters v. Dodge, Dodge will contact his insurer who will then hire a lawyer for the suit o However, in a case dealing with liability, almost all liability policies allow the insurer authority to settle the case not the insured The insurer could decide to settle the case OR contest the liability and litigate The first thing to do if you decide to contest the complaint is to respond to the complaint, and this is accomplished in two different possible ways:

o A motion attacking the summons/ complaint, OR o A responsive pleading (usually called an answer) --Motions: Pre-Answer Motions Motions are simply requests that the court to do something dismiss the case, enter judgment on verdict, etc. o Lawyers talk about moving or making a motion these are tried in order to end the case or alter its shape o An important characteristic: these motions take NO position on truth or falsity of the plaintiffs allegations One motion has to do with ending the case because the action simply should not be processed ex. like a case in federal court that does not have subject matter jurisdiction Another motion has to do with ending the case because under substantive law, the plaintiff has no right to relief ex. the defendant drives an offensive colored car When a motion is filed, the other side will have to be notified of the plan to make a motion, what kinds of motion, and the time and place the motion will take place. o Also, a memorandum of points and authorities will be given o Also, include any evidence pertinent to the motion like an affidavit or copies talking about where the plaintiff and defendant hold residence and their local affiliations Then the judge can then do a few things: o Hear the lawyers arguments for their individual clients o Decide the motion on the spot, or reserve more time for additional research and thought

o Give a tentative ruling and then allow the losing side to argue against the ruling Notes and Problems 1. The plaintiff simply wants the case to end of change?? The defendant would then not have to answer because the case would be gone. 2. B and C are proper. The Answer: response to the plaintiffs allegations If the defendant decides not to file a motion OR the court does not grant the motion, then the defendant must give an answer o Rules 7a & 12a: 21 days to file an answer, etc. Two essential variations o The defendant can deny the truth of the allegations; OR if hes not sure if the allegations are true, then he can deny them until he finds out o The defendant can claim an affirmative defense the will wholly or partially defeat the plaintiffs claim Rule 8c they can claim that the plaintiffs own negligence contributed to the car accident The defendant can also make a claim of his own: counterclaim, cross-claim, or third party-claim o Counterclaim a claim for relief asserted against an opposing party after an original claim has been made o Cross-claim a claim asserted between co-defendants or coplaintiffs in a case and that relates to the subject of the original claim or counterclaim o Third party claim - ?????

Notes and Problems 1. 2. 3. 4. 5. --Amendment of Pleading:

The Federal Rules reject the view that the case is set in stone once the pleadings are completed. o There can be amendments to cases and pleadings because of discovery rules Discovery rules can allow both parties to investigate into the claims and gather further evidence o Example: a man who is being sued by the victim of a car accident actually finds out that the car belongs to the defendants daughter she can now be added as a defendant Rule 15: deals with the evidence discovered during a trial, after the trial is decided, and evidence found once the time has run out on a case to appeal

--Parties to the Lawsuit Even though some cases are just between one plaintiff and one defendant, MOST of the time cases are brought to the court by multiple people or a case is brought against multiple people See Rules 19, 20, 23, and 24 o Rule 20: governs permissive joinder This is the optional joining of parties together in a case if 1) their claims or allegations are in respect the same or the same situation, AND 2) any legal or factual question common to all in the party will arise They have a choice of who to join as a co-plaintiff/codefendant

Rule 19 Rule 23 Rule 24

Larson v. American Family Mutual Ins. Co. -- Facts: (P)s original suit was filed against insurance company for failure to pay homeowners claim. When original attorney commits malpractice by failing to pursue the claim for personal reasons, second claim is added against the attorney (attempting to make the attorney a co-defendant)

--Procedural History: Claim originally filed with attorney Ross-Shannon, but he didnt pursue the claim because he was pursuing a job to represent the defendant. Plaintiff retained new counsel and filed in state court, removed to federal court on diversity jurisdiction and then tried to add the former attorney as a co-defendant. Defendant objects because time expired and the two issues did not arise from the same transaction. --Issue: (a) Was motion to add the second claim timely? (b) Is the motion allowed by the same transaction rule? Holding: (D)s are joined and the case goes back to state court according to the rules of 28 USC 1447(e) (a) Yes, claim was filed as soon as the plaintiff had adequate evidence to file it. (b) Yes, duties of each party may have been different, but the breach was the same transaction. Reasoning: (a) Discovery happened in January 2007, and the claim was filed in February 2007. Even though they may have known more information, they waited for discovery to get hard evidence. (b) Duties of each party may have been different, but the breach came from same transaction and thus the claims can be joined. Joiner is permitted if claims are o (1) arising out of the same transaction, AND o (2) contain a common question of law.

Notes and Problems 1. The plaintiffs wanted the case to be tried in state court anyway. 2. A) The defendant uses Rule 15 to prove that the claim should have been made within 14 days, not several months. B) the original claim stated that the insurance company had breached their contract and had failed to pay them money that the company owed them the defendant believes that he had nothing to do with this action because he was not involved at this time. C) _____??? --Factual Development: Discovery

Broad and deep discovery does define some of foundation of modern civil procedure o NOTE: questions of jurisdiction, pleading, and parties typically takes place at the pleading stage Discovery assumes that pleadings have occurred, and this stage probes the facts beneath the parties contradictory allegations against one another o However, discovery is not fact investigation Rule 11 states that lawyers are required to do some pre-pleading investigation of the facts o They can use observation, personal knowledge, or conversations with anyone who will talk to them o Example: the plaintiff who was harmed in the car accident is also active in college sports the lawyer can talk to the coaches and teammates to see what his pre- and postperformance was like; the lawyer can also hire a photographer to take pictures of him practicing Another problem is that most people close to someone involved in a case will most likely not speak to a lawyer or make any comments about the case to a lawyer However, a major innovation in the discovery rules has a provision that compels people involved in a lawsuit to cooperate in the discovery of factual background o Rules 26-37 and 45 give parties these powers Rule 26: a party is required to reveal to the other party basic info like names of witnesses, documents, etc. 26.B info must be relevant to the case, & cannot be included under privilege 26.C the retrieve all the info may not be granted if the act of retrieving it is overly burdensome o Rule 33: parties may obtain other info by asking questions through an interrogation o Rule 34 and 45: requires the production of records Rules of Discovery can also lead to allowing info to be found that will weaken the others defense so there are THREE restrictions

o Parties may discover evidence that is only relevant to a claim or defense in the case o Even if relevant, the requested info may be protected by privilege o Even relevant, unprivileged info may be undiscoverable if a party can convince a court that its potential for harm will outweigh its value Under the Federal Rules, the provisions for broad discovery implicitly suggest that dismissals should NOT occur until the parties have had a full opportunity to obtain factual info about the case

**Magistrate Judge: they have the power to settle cases that are agreed to be decided by this kind of judge; they handle organizing the council for multi-district cases and class-actions; they deal with pre-trial motions; they are usually unique to the Federal judicial system** *The Magistrates ruling is just a suggestion for the district court* Butler v. Rigsby --Facts Defendant made certain discovery requests from two medical groups of the doctors that provided medical treatment to the plaintiffs in the accident. He asked for numerous documents, essentially every record they doctors had of their involvement in litigation since 1992. Both medical groups moved the court for a protective order prohibiting the defendant from discovering the information requested pertaining to their involvement in litigation on grounds that it was not relevant to the lawsuit, is privileged, and that the

request was overly burdensome. --Procedural History The Magistrate ruled that most of the information was discoverable, and this appeal followed. Then the medical group filed a motion for protective order to protect them from complying with the magistrates order

o Hospitals have argued a privacy violation because of privilege, the information is not relevant to the lawsuit, and it is extremely burdensome --Issue = What is the scope of discovery in a civil proceeding? --Holding = Hospitals must produce the documents --Reasoning Despite finding that the matter requested was discoverable, the time and expense involved in producing it convinced the court to order the defendant to pay one-half the cost of producing the information. The Federal Rules of Evidence contemplate liberal discovery and provide for a flexible treatment of relevance. Under Rule 26(b) (1), the scope of discovery includes any matter, not privileged, that is relevant to the subject matter involved in the pending action. The information need not be admissible at trial in order to be discoverable if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. However, discovery may be limited if the court determines that the discovery sought is unreasonably cumulative or duplicative

--Significance Essentially this case is an illustration of the broad range of discovery powers granted parties under the Federal Rules, even when it concerns non-parties. Students should keep in mind that even where costs of discovery outweighs the benefits, discovery may still be granted, although reduced in scope from the amount requested Notes and Problems 1. 2. 3. 4. 08/24/11 class lecture Appendix of Forms on page 171

Once you have done all the research you need to on the case, the court to file in, what you want to file, etc., you will THEN file a complaint You need to know the substantive law and place those facts into the complaint before sending it to court You can decide whether to put o A lot of information o Or only the necessary information You may want as many details as possible because: o This is the first time the court has seen your case they can see the terrible things the defendant has done to your client o You will be able to possibly scare the defendant and his defense attorney to make them maybe want to settle to show them how strong your case is o You need to AT LEAST put enough details in the complaint so that way the defendant cannot file a motion to dismiss the case on grounds that there isnt a REAL complaint Notice pleading you have to put enough info in your complaint to tell the other party on notice of the lawsuit There is NO Rule that states how much info you must put in a complaint no limit of what needs to be in there If a court does dismiss the complaint because defense has proven there isnt a real complaint, then most courts will allow you to amend the complaint without sanction o Rule 15 is very liberal and this Rule guides this action An example of a complaint is on page 19 in Yeazell o The complaint MUST have information on it that proves the allegation you cant just accuse someone of a crime if you dont have any facts

After the complaint is filed, the defendant MUST file a response Federal Rules and state rules REQUIRE that a response be filed with the court o You will either admit or deny the allegation, OR that there is not enough information in the complaint to continue on Rules of Joinder

o This is when there are multiple plaintiffs, defendants, and/or complaints in a case o There can be an initial claim, and then a counterclaim can be filed Example: Peters files that Dodge wrecked his car by running a red light Dodge then files a response saying that he is denying the complaint, and then files a counter claim saying that Peters ran the red light and wrecked his car If Peters had a passenger in his car, then the passenger could join in on Peters claim to sue Dodge. Peters could also sue the company that made the car because he has discovered something stating that something in the car made Dodge wreck into Peters. Then Dodge could say that he is not at fault here nor was he negligent in this situation he can file a crossclaim to join Peters suit on the car company Dodge can also file a third-party claim which would bring a third party into the suit Dodge could bring in

his insurance company because they had a contract of insurance to protect him both are at fault o Class action just how many plaintiffs do we want to put in one lawsuit? These came out of massive tort suits and consumer issues cards come in the mail talking about any kind of injustice you have experienced Example: a card come in the mail stating that your energy company has overcharged you by $1 for the seven years if you discover this and there are 500 other customers who had this happen to then this would be a class-action suit 08/26/11 pgs. 33-53 F. Pretrial Disposition Summary Judgment Not all cases should reach trial trials involves substantial financial and social costs; little purpose is served by unnecessary trials

Because of this, Federal Rules adopted summary judgment, which provides a mechanism for deciding cases for which a trial is not necessary and would serve no purpose o Rule 56 regulates summary judgment: o 56.A: a movant is entitled to this judgment by law if here no genuine dispute of fact in the case o 56.C: requires that a court grant summary judgment when there is no genuine issue to any material fact o 56.F: the decision of a motions for summary judgment will be delayed in the opposing party has not or was not able to

complete their discovery The court always tries to see if there is any genuine dispute of fact BECAUSE that is supposed to be decided by the jury what is true The court tries NOT to evaluate the creditability of witnesses juries decide the creditability The court ONLY grants this if a case does not have enough evidence that the case can go forward --Default Judgment Other times, a court will grant default judgment: Rule 55 o The defendant does not answer the complaint entirely, OR o The defendant fails to defend completely, OR o The defendant fails to show up for court --Dismissal If the plaintiff does not obey any order presented by the court, the court can grant a dismissal: Rule 55 o The most common reasons for a dismissal are: Failure to comply with discovery orders Failure to prosecute the case Failure to appear for calendar calls, motions, or pretrial conferences Also, a plaintiff can seek a voluntary dismissal: o Plaintiffs will seek this if he/ she believes that their case will be better off if they start over Rule 41

Houchens v. American Home Assurance Co.

--Facts Mr. Houchens disappeared in August of 1980, after traveling to Bangkok on a vacation from work at International Civil Aviation Organization. Mrs. Houchens wishes to collect on one of two life insurance policies o One policy covers Mr. Houchens for occupational accidental injury or death o The other policy covers Mr. Houchens for non-occupational accidental injury or death Mrs. Houchens brought an action to declare Mr. Houchens legally dead by Virginia law in 1988 the order was issued in 1988 stating the Mr. Houchens was indeed presumed dead. American maintains that they are not obligated to pay either of the two policies because there is no evidence of Mr. Houchens death nor any evidence of an accidental death --Procedural History American filed for a summary judgment based on their position in the trial court (no dispute of fact), which was granted in favor of American the suit was dismissed Mrs. Houchens is appealing the case against the summary judgment granted by the trail court --Issue = Was the summary judgment granted by the trial court granted erroneously based on the evidence presented at trial? --Holding = The summary judgment STILL stands because Mrs. Houchens was not able to provide sufficient evidence of the accidental death. --Reasoning The burden was on Plaintiff to prove that her husband died by accidental means. A District Court does not err in granting summary judgment where a jury could not reasonably conclude that it is more likely than not that the Plaintiff can prove the elements of his claim Mrs. Houchens never provided the evidence needed to prove the existence of the accident No bizarre circumstances surrounding his disappearance, NOR was he seen in any grave danger

The very small amount of details provided by Mrs. Houchens about the presumed death of Mr. Houchens would not provide enough detail for a jury to decide the case --Significance Summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that partys case, and on which that party will bear the burden of proof at trial. G. Trial Around 5% of cases actually see trial, and a great number of those cases are settled during the trial or in the appellate stage When a trial does occur, it consists of opportunities for each side to present their case before the court judge or jury The plaintiff will have an opportunity to do the following (which the defendant will also have the same opportunity): o Make an opening statement o Present his case o Make a closing statement There are also smaller details: o For each witness, one side gets to examine that person and then the other side will cross-examine the witness o This takes places to draw out the witnesss story Witness testimony also brings out two major principles: o The parties are responsible for proof, and o The party going first bears the burden of providing evidence and persuading the trier of fact that their version is more likely to be true

--Judgments of the Court A judge is placed in the courtroom in a jury trial to make sure there is enough evidence being presented that a reasonable fact-finder can find a verdict Trier of fact is normally a jury in US courts, which is provided for in the US Constitution in the 7th Amendment However, a judge has power over a jury: o A judge can limit a jurys power in a civil case

o A judge may refuse to submit a case to a jury o A judge may grant judgment by overturning the jurys verdict --Directed Judgment or Directed Verdict: Rule 50 Directed judgment: a party moves for this before the jury even reaches its verdict o The jury is dismissed and the judge decides the case o The judge basically grants this when he decides that there isnt enough evidence to present opposing sides The opposing party can move for directed judgment after the plaintiff has rested their case, OR whenever they feel after that --Judgment Notwithstanding the Verdict: Rule 50 JNOV: after hearing the jurys verdict, the judge can decide the case by overturning the jurys verdict of the case The judge is able to use this type of judgment when he feels that the jury had no option but to reach a certain verdict because of the facts Norton v. Snapper Power Equipment --Facts Plaintiff was using a mower manufactured by Defendant on January 24, 1983. Plaintiff testified that as he drove up an incline, the mower began to slide backward towards a creek, despite the fact that he was applying the brakes. The lawn mower, with Plaintiff still aboard, crashed into the creek. At some point during the crash, Plaintiffs hand was caught in the mowers blade, and four of his fingers were amputated. --Procedural History Plaintiff then sued Defendant. The jury returned a verdict in favor of Plaintiff. Upon dismissing the jury, the district court issued a judgment notwithstanding the verdict. This appeal followed. --Issue = When should a court grant a JNOV? --Holding = The trial courts directed judgment is reversed to show the jurys verdict instead, which is in favor of the plaintiff --Reasoning

There was enough evidence presented by the plaintiff that the jury could have reached their verdict reasonably (the defective dead man device) Although the evidence was circumstantial, it was also very impressive experts testified that if the dead man device had been effective, the injury could have been avoided Only where the evidence so strongly and so favorably points in the favor of the moving party that reasonable people could not arrive at a contrary verdict. The jury is permitted to reconstruct the series of events by drawing an inference upon an inference.

H. Former Adjudication Adjudication: the legal process of resolving a dispute, or the process of judicially deciding a case Double Jeopardy: prevents a person from being tried twice for the same crime o This is also included in Civil Procedure, where a plaintiff who brings a case, or a defendant who defends one, SHOULD NOT be able to try again if he is not satisfied with the result o This is called Former Adjudication, or Res Judicata --Former Adjudication Claim Preclusion OR Issue Preclusion Claim preclusion: if Plaintiff A sues Defendant B and loses OR is not satisfied with the money awarded, A cannot sue B again; OR if A wins, B can appeal BUT B cannot bring about a second action to set aside the first judgment o Doctrine of res judicata For this to apply, the claim MUST BE the same in both the first and second action o Example: A cant sue B for injury to his arm in one case, and then injury to his leg in another case Issue preclusion: you cant re-litigate issues over and over again in the court o Example: A sues B on a promissory note, and B claims fraud; well A wins the case and then brings B into another suit with a different promissory note; B cannot claim fraud again based on the first case because that issue was already decided and stands away from the issue in this second case

Some states used to allow property damage and personal injury to be separated in lawsuits legally however, most courts now enforce that all people must bring about all claims in one suit from one issue o Doctrine of collateral estoppel Example: from the case below, the decision on Mrs. Rushs case for Citys negligence could be seen as binding if the next suit from this issue is filed by Mr. Rush for City negligence

Rush v. City of Maple Heights --Facts of Both cases Plaintiff was riding her motorcycle with her husband one day, when they hit a hole in the road, which caused substantial damage to the motorcycle and injuries to the plaintiff --Procedural History (P) first filed suit against the City for the damages to her motorcycle (property), which (P) wins; THEN (P) filed second suit against the City for her personal injuries (legally able to do this because of claim preclusion!!) o (P) argues that the previous decision on Citys negligence for her property is binding on the second suit of personal injury The court handed judgment in her favor for personal injuries The defendant then appealed the second lawsuit on basis of issue preclusion, claiming that the first suit should have included both the property damage and the personal injuries (D) claimed that the second suit was not valid --Issue = Is the second suit filed by the plaintiff valid on the basis of issue preclusion? --Holding = The previous personal injury judgment is reversed, and the judgment is handed down in favor of the defendant. --Reasoning Where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single cause of action arises because the different injuries are really separate items of damage from the single act

The plaintiff should have included her personal injuries in the first suit because the second suit is not valid --Significance = This case expresses the general notion in civil procedure that a plaintiff who brings a case, or a defendant who defends one, should not be able to try again in a later suit if he is not satisfied with the result in the first suit. However, as this case also demonstrated, not every court agrees that a plaintiffs claims for personal injuries and property damage arising out of the same accident are part of the same claim. The court in this case adopted this majority view, refusing to allow Plaintiff to sue for personal injuries in one action, and property damage in the later action I. Appeals Our judicial system permits losing parties to appeal an adverse judgment of a lower court to a higher court o Circuit courts of appeal are numbered 1-11 o The DC circuit appeals to the DC Circuit Court of Appeals o Federal court appeal to the Federal Circuit of Appeals After the court of appeals for any level of government, the next step for appealing a case goes to the Supreme Court These address the correctness of trial court rulings that are likely to have affected the outcome o Appeals cannot be used to correct counsels mistakes during the first trial or during pretrial proceedings (even if they affected the outcome of the case) o Errors from prior cases are what is used for appealing a case o You must object to errors happening during the trial so that way you could appeal the case later o Example: if (D) wants (P) to produce documents for a lawsuit, but the trial court does not allow your objection you must wait until later to file an appeal on the decision of (P)s objection to produce documents o There would be no point in allowing each person to appeal each action in a case that does not go the way a party wants it there would never be any trials!

Apex Hosiery Co v. Leader --Facts Plaintiff filed an action for treble damages under the Sherman AntiTrust Act. Apex then made a discovery request of the Defendant for the discovery and production by them of documents for inspection, copying and photographing for the Plaintiffs use at trial. The District Court ordered the production of the documents pursuant to FRCP 34. Defendant now appeals that order --Issue = Is a discovery order issued by trial court appealable? --Holding = The Third Circuit dismissed the appeal and upheld the order for production. --Reasoning An order of this nature is interlocutory, and therefore, not appealable. It is only when refusal to comply with a discovery order happens to result in an order punishing criminally for contempt that a party may have review by appellate proceedings before a final judgment is issued The Court found that the disposition of the discovery motion would determine the conduct of the trial and likely the outcome as well. Thus, like other motions made prior to or during trial to secure or to suppress evidence, unless the court order results in the opposing party being held in contempt, the Court will not review an appeal of a discovery order so long as the order is carefully drawn so as not to unduly pry into the opposing partys affairs

Notes and problems If the case is dismissed on the basis of lack of evidence, then you can appeal the case. 08/30/11 Pg. 55-75 A. There are two approaches to looking at the procedural system: --Top to Bottom starts with the constitutional environment in which the lawsuit exists This approach goes from between the history and current interpretation of the US Constitution

Studying the Constitution reveals several limits on the ways state and federal court systems conduct business these limits have severe consequences for individual litigants --Bottom to Top starts with the life cycle of each individual lawsuit Life cycle: how the parties initially state their grievances, develop info about them, and bring them to resolution B. Constitutional Limits in Litigation 1. The Idea of Jurisdiction Jurisdiction, more or less, means the power to declare the law Think about if you had a problem with the landlord of your apartment you would not complain to the landlord of another apartment complex because they do not have jurisdiction to help remedy your complaint The law of jurisdiction and legislative jurisdiction tend to signify a state or territory whose government has the power to make law within its bounds. Judicial jurisdiction: the power of a court to render a judgment that other courts and government agencies will recognize and enforce. o If the reason or situation for filing a lawsuit took place in California, you would have a hard time being able to file the suit in a Louisiana court LA does not have jurisdiction over the matter because it took place somewhere else o The only way you would be able to file a suit in a federal court would be if It fell under federal law, OR You and the other party are of diverse citizenship

look on page 57 for picture!!!

2. Jurisdiction and the Constitution A court needs two different types of jurisdiction they are both necessary ingredients of any courts power to render a binding decision in a case o Personal Jurisdiction: a courts power to bring a person into its adjudicative process; jurisdiction over a defendants personal rights, rather than merely over property interests o Subject Matter Jurisdiction: jurisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or that status of things No single government entity has plenary power this is set out in our US constitution by our checks and balances Because the US Constitution defines the lines of authority among the competing centers of power, courts look to the Constitution for their basic framework in deciding issues of judicial jurisdiction 3 parts of the Constitution bear on jurisdiction: o Article III, Section 2 authorizes the establishment of the system of federal courts & sets the limits of the federal judicial authority Congress has the power to restrict the scope of federal judicial authority This deals with subject matter jurisdiction o Article IV, Section 1 requires that Full faith and credit be given in each state to judicial proceedings of every other state Supreme Court has interpreted this to mean that one state must recognize and enforce judgments of another state Deals with personal jurisdiction

Example: if A sues B in Louisiana state court, and A wins $$$ from the judgment if there are no assets in Louisiana of B, then A may file the suit in the state that has Bs assets that other state must recognize and enforce the judgment of Louisiana state court However, the other state only needs to recognize this clause when the judgment comes from a court that had jurisdiction over the suit o 14th Amendment, Section 1 no state shall deprive any person of life, liberty, or property without due process of law This has proved to be one of cornerstones of modern constitutional and procedural theory Deals with the notorious Pennoyer v. Neff case and personal jurisdiction 3. The Constitution and Choice of Law The US Constitution shapes US litigation by dictating which set of laws a court must apply to a dispute. It does this in 2 ways: Article VI provides that the Constitution and federal laws shall be the supreme law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws in every State to the Contrary notwithstanding o Referred to as the Supremacy Clause o Basically, if Congress enacts a statute that deals with a particular subject, then both federal and state courts are required by law to enforce the federal statute (even if there is a contrary state statute or state common law) o In the absence of a controlling federal statute, the federal court system is required to respect both the statutory and common law rules of the several states PERSONAL JURISDICTION, CH. 2 A. Origins This is part of US constitutional law because of Pennoyer v. Neff the case whose deceptively simple facts spawned a new doctrinal elaboration Background of Pennoyer v. Neff

o One of the more difficult parts of a lawsuit is when the plaintiff tries to collect from the defendant who declines to pay o When this takes place, a plaintiff may obtain a writ of execution from the court, which will authorize: The sheriff to seize any property belonging to the defendant, Sell the seized property, usually through auction, AND Give the resulting money to the plaintiff Once the property is sold, the sheriff will give the buyer a sheriffs deed as evidence of an ownership title o Constructive notice generally constructive means fictional or pretend If a defendant cannot be found to be served notice of a lawsuit, then some states will provide notice in a newspaper This notice through the newspaper is called constructive notice because the defendant is very unlikely to see it o Attachment the legal term for an officially sanctioned seizure of property Pennoyer v. Neff --Facts Mitchell brought suit against Neff to recover unpaid legal fees. Mitchell published notice of the lawsuit in an Oregon newspaper but did not serve Neff personally. Neff failed to appear and a default judgment was entered against him. To satisfy the judgment Mitchell seized land owned by Neff so that it could be sold at a Sheriffs auction. When the auction was held Mitchell purchased it and later assigned it to Pennoyer. --Procedural History Neff sued Pennoyer in Oregon federal district court to recover possession of the property, claiming that the original judgment against him was invalid for lack of personal jurisdiction over both him and the land.

The court found that the original judgment in the lawsuit was invalid and that Neff still owned the land. Pennoyer lost on appeal and the Supreme Court granted certiorari. --Issue = Can a state court exercise personal jurisdiction over a nonresident who has not been personally served while within the state and whose property within the state was not attached before the onset of litigation? --Holding = judgment for Neff is affirmed --Reasoning A court may enter a judgment against a non-resident only if he o 1) is personally served with process while within the state, or o 2) has property within the state, and that property is attached before litigation begins (i.e. quasi in rem jurisdiction). Since the adoption of the 14th Amendment, the validity of judgments may be directly questioned on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. o Due process demands that legal proceedings be conducted according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give legal proceedings any validity, there must be a tribunal with legal authority to pass judgment, and a defendant must be brought within its jurisdiction by service of process within the state, or by his voluntary appearance. The substituted service of process by publication in actions brought against non-residents is valid only where property in the state is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. The Oregon court did not have personal jurisdiction over Neff because he was not served in Oregon. The courts judgment would have been valid if Mitchell had attached Neffs land at the beginning

of the suit. Mitchell could not have done this because Neff did not own the land at the time Mitchell initiated the suit. The default judgment was declared invalid. Therefore, the sheriff had no power to auction the real estate and title never passed to Mitchell. Neff was the legal owner. Notes and Problems 1. A) I believe Neff only learned of the original suit after learning that his property had been seized by the sheriff and sold to Pennoyer. B) The absence of a notice is a strong objection because the notice in this case was in a different state than the Neff was residing, plus he was not a domicile of that state either. C) The court does discuss this objection, and decides that in the Code of Oregon, notice can be fulfilled through a newspaper for the defendant to learn about the lawsuit. The notice in the paper, however, can apply to a non-resident of the state, BUT the property in the proceeding must be attached to the original suit. 2. The property would had to have been attached to the litigation at the beginning of the suit it could be attached after the judgment had already been handed down to satisfy payment. Another way is if Neff would have appeared in the original suit then the courts could have taken his property and used it to satisfy the original judgment. 3. A)???? B) All cases following Pennoyer v. Neff deal with the tricky line between blocking interstate commerce and avoiding abusive litigation. 4. A) To gain personal jurisdiction over a person, the state must serve proper notice over the person according to the other states laws. The Oregon court could gain jurisdiction over Neff because: -Neff was not a resident of the state of Oregon, nor was he even present in the state when the notice came out; -Mitchell needed to sue Neff in Neffs own state, or served Neff personally in his own state so that way he would appear in court. B) The Oregon court did not seize the property from the outset of the trial because Neff did not own the property at the outset of the lawsuit they merely took the land after the judgment was handed down to satisfy the compensatory element of the judgment. C) A state can have court proceedings that hand a judgment down against the defendant of another state, but that judgment is only binding in that state and ONLY when the defendant returns to the courts state????

5. Neff never appeared in court for the first lawsuit brought by Mitchell, because he was not given proper notice of the lawsuit NOR was he ever told about the judgment handed down against him??? 6. A) B cant dismiss the case because they have taken the action in his own residential state. B) The judgment would be enforced because it came from a North Dakota court, which is where the resident lives thus the judgment was handed down with personal jurisdiction. C) B could move for dismissal because the action against him is not served to him in his residential state, unless his residential state agrees to enforce the judgment?? D) They will enforce it under full faith and credit; once ND court agrees to enforce the judgment from Missouri, then jurisdiction doesnt matter?? E) because A attached the land to the suit before judgment was handed down, A can sell the property. F) Sounds like Pennoyer there will be no enforcement of the judgment because there is no basis for jurisdiction. G) What might happen here is that the Minnesota court can grant the divorce because states have the power to determine status of its residents. H) The Minnesota court cannot do anything about the other persons money or the child because they do not have jurisdiction over the money or the child the court only has jurisdiction over the status of its resident. I) ND needs to abide by the ruling of Minnesota B should have remedied by appealing the decision with Minnesota courts about error of their jurisdiction. 7. A) The Amendment should have applied because it is part of the US Constitution guaranteeing citizen rights in trial, and it has binding authority over all cases. 8. Notes on Mechanics of Jurisdiction: Challenge and Waiver Collateral attack: this is what happens when (D) if sued by (P) in another state court besides the one that (D) is a resident of. If (D) believes that the other state court does not have jurisdiction on himself, then he simply will not have to answer the suit o After the default judgment is handed down in the other court and the (P) goes to file the judgment with (D)s state court, then (D) simply had to battle the judgment from the other state, claiming they do not have jurisdiction over him. Jurisdiction is the only thin subject to collateral attack

A defendant may raise jurisdictional defense either in his answer to the lawsuit or by filing a pre-answer motion. o Any pre-answer motion that omits a defense of personal jurisdiction is treated as waiver of jurisdiction. Defendant can appear in court, file a motion, or file an answer that asserts their belief that the court lacks jurisdiction however, defendant must raise this issue the first time he raises any issue in the suit, otherwise he loses the right to raise the issue of jurisdiction o If defendant files an answer stating lack of jurisdiction, he must also file to dismiss the case based on that answer o Only a few states will allow a defendant a special appearance to assert lack of jurisdiction because most believe that if you show up to the case, then you are consenting to that courts jurisdiction If defendant asserts that the court lacks jurisdiction but the court rules that it does, when can the defendant file an appeal based on courts error based on lack of jurisdiction? o Most states and federal courts require that defendant cant appeal jurisdiction until after the final judgment

The Mechanics of Jurisdiction: Challenge and Waiver -Hypo about Abe and Barbara Abe from Kentucky sues Barbara from Illinois in Kentucky court. Barbara believes the Kentucky court lacks personal jurisdiction over her. to assert this claim, Barbaras options are: o Object to the Illinois lawsuit by filing a pre-answer motion motion is to dismiss based on lack of personal jurisdiction o Do nothing, and then collaterally attack when the default judgment is sent against you o File an answer the answer would include her objection to the courts jurisdiction over her & motion to dismiss Notes and Problems

B. The Modern Constitutional Formulation of Power Pennoyer left A LOT of gaps for modern legal procedure Power, consent, and notice all play a very important part in todays jurisdictional thought 1. Redefining Constitutional Power Milliken v. Meyer --Facts Two partners in an oil well sued one another. Milliken (P) is a resident of Wyoming and so is Milliken (D), and (P) filed a suit against (D) in Wyoming state court. (D) was served in Colorado at the time of the suit, where he was hiding from the lawsuit; of course, (D) did not appear in court in Wyoming because he was in Colorado during the suit. --Procedural History Thus a default judgment was entered against Meyer, for failing to appear in court. After Milliken filed suit to enforce the judgment, Meyer then collaterally attacked the judgment against him asserting a lack of basis because of lack of jurisdiction --Issue = Is domiciliary status in state court alone sufficient to establish proper nexus to establish personal jurisdiction over an absentee defendant who is served out-of-state? --Holding = The original judgment against Meyer was valid the court claimed that Meyer was given full notice of the suit because he was personally served by the Wyoming court while he was in Colorado --Reasoning Wyoming had a statute about service of process, and the Court needed to decide whether that statute was constitutional Based on Pennoyer, this service would not have been proper they would have had to do in rem jurisdiction. However, the Court holds that this satisfies due process as long as the process is reasonably calculated to give notice of the suit and an opportunity to be heard, so that traditional notions of fair play and substantial justice will be satisfied [constitution]

They also held that Wyoming still had authority over Meyer even if he was not present in the state because he still expected protection from Wyoming so he was still subject to their laws o Just because he was absent from the state at the time of the proceeding in court, he still is subject to their laws and court proceedings because he was domiciled (resident) there --Significance = Court held that domicile is NOT contingent upon continuous presence in the state & domicile in a state creates personal jurisdiction. 09/04/11 pgs. 75-95 International Shoe Co. v. Washington --Facts (P) International Shoe [a Delaware Company whose actual principal location is in Missouri] had several sales associates located in the state of Washington (D) during 1937-1940. (D) has a state statute that designates that each corporation in the state must pay taxes under Employment Compensation Act. (P) did not pay this tax, SO (D) later sent a notice through the mail to the Missouri location and also served a salesman of (P)s company about the lack of paid taxes. (P) showed up to court claiming that: o the notice of the suit was not proper service, o (P) was not a corporation in (D)s state & was not doing business in that state, o (P) had no actual agents in that state with whom the suit could be properly served, AND o (P) is not an employer and thus does not fit under the states statute

--Procedural History (P) went to the agency and appealed the order to the administrative tribunal, who then said that the order was mandatory to pay the taxes back to the agency. (P) then appealed this to the State Superior Court. o Superior Court rules against (P) saying that (D) does have jurisdiction over (P)

(P) now appeals the original judgment to the US Supreme Court stating that Washington does not have jurisdiction over (P)s company, nor can Washington receive compensation from (P)s company because (P) is not present in the state so taxation would be a violation of the due process clause o (P)s actions within the (D)s state were not sufficient for presence conferring jurisdiction --Issue = Did International Shoes activities in Washington make it subject to personal jurisdiction in Washington courts? --Holding = Washington has jurisdiction to bring suit because (P) established its presence in the state through its contacts. --Rules & Reasoning RULE: Pennoyer establishes that requirement of proper service of process & the Due Process clause establishes that defendant is subject to jurisdiction if he has minimum contacts with the forum state where a suit would not offend traditional notions of fair play and substantial justice o Due Process is satisfied by looking at quality and nature of activities in relation to fair and orderly administration of laws Washington has jurisdiction because o (P)s activities were continuous and systematic in the state during this time because they resulted in a large volume of interstate business & (P) received the benefits of protection under Washington law o The suit here arises out of those contacts^ While the inconveniences presented to (P) by the suit in the forum state do matter, in this case (P) subjected itself and consented to jurisdiction through its contacts with the forum state

--Policy The Court changes the definition of presence in this case it is now based on quality of contacts and activities in the state o The Court foresaw all the issues that were to follow with corporations in the US, so they changed it --Evaluation = Minimum contacts with the forum state can enable a court in that state to exert personal jurisdiction over a party consistent with the Due Process clause.

A casual presence of a corporation or its agent in a state in single or isolated incidents is not enough to establish jurisdiction. Acts of agents of the corporation, because of the nature, quality, and circumstances of their commission, may be deemed sufficient. o Consent may be implied from the corporations presence and activities in the state through the acts of authorized agents.

****When you get a PJ question on the exam, you need to test whether there are minimum contacts with the state so that exercise of jurisdiction does not violate the traditional norms of fair play and substantial justice**** Contacts can be continuous and substantial, OR contacts can be superficial OR casual --Does the suit arise out of the corporations contacts in the state, OR does the suit arise because of something else? If the contacts are continuous and substantial, AND the suit arises out of the contacts in the state then the state has jurisdiction If contacts are continuous and substantial, BUT the suit does NOT arise out of the contacts then the state MAY have jurisdiction (if the contacts are STRONG enough) If contacts are casual, and the suit arises out of the contacts then the state has jurisdiction BC o Someone is taking advantage of the rights, benefits, and protections of that other state

--Hypo: if Michigan girl comes here to LA during a TS weekend, and she hits an LA resident with her car can LA girl sue her? YUP because the suit arises out of the contact, even though the contact is minimal If contacts are superficial, and the suit does not arise out of the contacts does not have jurisdiction Hypo: Michigan girl comes down here, but after going back to Michigan decides to sue somebody over property in Michigan she chooses LA court. NO jurisdiction because the contacts are NOT real, PLUS there is a violation of fair play and substantial justice Notes and Problems

1. A) B) C) The facts of the case would have to have changed by the corporations lack of presence in the state as in, the corporation did not use the states laws as protection from its citizens AND the courts enforcement of those laws of protection. 2. What does the court mean when it says that a defendant must have certain minimum contacts with it such that the maintenance of suit does not offend traditional notions of fair play and substantial justice? If the people of this corporation were freelancers, I think the judgment would have differed because then those people would not be considered real employees of the corporation because of their lack of contract with the corporation; they do not work for any certain corporation, instead they work for several. ****Meet with Algero to discuss these issues**** 3. General Jurisdiction versus Specific Jurisdiction GJ says that, according to this case, that any state can sue a corporation on issues that do not reside within that corporations operations in the state; SJ says that a persons claim may only be valid by jurisdiction if the instant in which it regards. That is, the jurisdiction only exists only because of the specific claim, but would not apply in other claims. 4. A) I believe that Wyoming would have jurisdiction in this case only because of the cases specific circumstances the suit arises out of the contact even though they are not that strong. **The company benefitted under Wyomings benefits and protections by law. B) **Wyoming would not have jurisdiction over this case because of the minimal contacts and the suit does not arise out of the contacts: when the woman worked for the corporation, the location and activities took place in Missouri. The activities and operations that took place during her employee never touched Wyoming nor affected her life there. C) In this case, the contacts are strong and the suit does not arise out of the contacts, SO the rancher would have jurisdiction in Missouri because that is the home of the corporation. The employee would not have trouble suing in Missouri because the employment contract would be in Missouri strong contacts. D) The rancher would have to sue for the unpaid interest in Missouri because his shares are part of the company in Missouri and are not affected by his location in Wyoming. 5. ???????? McGee v. International Life Insurance Co.

--Facts The deceased, Franklin, obtained a life insurance policy from (D); (D) sent mail to Franklin about the policy, and Franklin accepted the policy. He then sent premium payments through the mail from his California residence to (D)s office in Texas until his death. The beneficiary from the policy notified (D) that Franklin has died, but (D) refused to pay out the policy. --Procedural history (P) brought suit against (D) in California claiming that (D) owed payments from the policy. Notice of the suit was sent to (D) in Texas, and a California court handed down a judgment saying that (D) owed the payments. (D) then appealed the Cali judgment to Texas court stating that California did not have jurisdiction over (D) in the suit, thus making the judgment not binding. Appeal was ruled in favor of (D) stating that service or process was wrong. (P) then appealed this case stating that a binding contract was formed between Franklin and (D). --Issue = Can a state exercise jurisdiction over a defendant whose contacts with that state are limited to a single act or contract? --Holding = YES but very narrowly. Cali does have jurisdiction over (D) in this case because (D) had a substantial connection to the forum state --Reasoning In considering the contract was delivered in Cali, the premiums were mailed from Cali, and the insured was a resident of California when he died, combined with the recognition that modern transportation and communication have made it much less burdensome for a party sued to defend themselves in a state where they conduct business, (D) is subject to jurisdiction in Cali. There is no violation of just and fair play for the Cali court to enter a binding agreement on (D). Moreover, the Court reasoned that California residents would be at a severe disadvantage if they had to leave their own state to obtain payment from their insurance company If (D) did not want to be subject to jurisdiction under Cali, then (D) should not have made contact with the Cali resident.

--Policy = A state may exercise jurisdiction over a D whose contacts with that state consist of only a single act, provided that that act is what gave rise to the claim for which jurisdiction is being sought, and was deliberately directed toward the state. A state has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims Hanson v. Denckla --Facts Mrs. Donner created a trust with a Delaware bank, who was the trustee. Mrs. Donner lived in Pennsylvania at the time of creating the trust, but then she moved to Florida where she later died. Her will was probated in Florida, where she was later domiciled. Denckla and Stewart are the greedy daughters who only want to split the trust between themselves they say FL has jurisdiction. Hanson is the other daughter who wants to split the money between all 3 of them equally she claims FL doesnt have jurisdiction. --Procedural history (D) Denckla and Stewart brought the first suit in Florida court to get the $$ from Donners trust. --Issue = Is a non-resident corporation with no offices nor any business transactions in forum state subject to jurisdiction in forum state by virtue of plaintiffs unilateral activity with defendant? --Holding = Florida did not have jurisdiction over the trust. --Reasoning Delaware bank has no contacts within Florida except that its client moved there. The trust was made in Delaware which shows a unilateral relationship between Donner and the bank. o Donner reached out to make the original connection while in Delaware To constitute a contact with forum state, there must be some act by which the defendant purposefully avails itself of jurisdiction but maintains privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.

The unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State. --Significance After moving to Florida, Donner continued her already established trust she sought out the bank; whereas in McGee, the insurance company reached across state lines to make the connection and continue it. Notes and Problems 1. Due Process Clause deals with any court in the US who wants to exercise personal jurisdiction over any individual in the US. It never depends on whether the case was tried in Florida or Cali the clause has to be applied the same way to every case 2. purposeful availment: did the defendant purposely avail themselves from the ___ In McGee, the defendant did purposely avail itself from jurisdiction they reached across state lines to make the connection. In Hanson, the defendant did not purposely avail itself from jurisdiction they made the connection in Delaware, not in Florida. --Jurisdiction Types: In Rem Quasi in Rem In Personam ***In rem jurisdiction deals with the property or status as the primary object in the suit, rather than in personam jurisdiction which deals with personal liabilities not necessarily associated with the property*** --The Modern Constitutional Formulation of Power (contd) 2. Absorbing In Rem Jurisdiction The International Shoe case did not deal with jurisdiction over individuals only jurisdiction over corporations; it also did not deal with in rem jurisdiction OR quasi in rem jurisdiction. One of the most interesting things about quasi in rem jurisdiction, while it lasted, was the possibilities it created for some cases:

o Plaintiffs could obtain jurisdiction by seizing not only tangible property but also debts owed to the defendant o Someone could bring action over someone else by o Example: Harris, Balk, and Epstein Harris was brought in a suit by Epstein to pay Balks debts once he entered Epsteins state. Harris owed money to Balk who owed money to Epstein. SC upheld this judgment The consequences a state could acquire jurisdiction over persons whenever their debtors were present in the state by attaching the debts. Shareholders derivative suit a shareholder steps forward and sues the directors or officers in the name of a corporation, alleging some breach of fiduciary duty o The corporation is run by a board of directors and officers. And when that corporation gets run into the ground through possible fault of the directors and shareholders, a shareholder can bring action against the officers and directors for not doing their job well. o If the suit is successful, then the proceeds go to the corporation

Shaffer v. Heitner --Facts Greyhound, a Delaware corporation, lost a large antitrust judgment in Oregon. Greyhound was fined a lot of money, and so the shareholders stocks lost interest and value. (P) Heitner is a non-resident of Delaware; he initiated a shareholder derivative suit in Delaware state court on behalf of Greyhound against 28 officers and directors of the corporation (i.e. Shaffer, D). o Heitner owned one share of Greyhound stock. Heitner filed a motion for sequestration of stock owned by 21 of the 28 defendants in order to obtain quasi-in-rem jurisdiction. o Heitner sued in Delaware because of the actions of the directors and officers, not because of its location or property. o The legal status of the stock was deemed to be in Delaware.

The Delaware sequestration statute allowed property within the state to be seized to allow the Delaware court to obtain in rem jurisdiction over the owner. (D)s made a special appearance to challenge the courts jurisdiction on the grounds that the statute was unconstitutional. (D) also asserted that there were insufficient contacts to confer jurisdiction. The District Court found that the statute was valid, and did not address the minimum contacts argument due to the finding that the legal presence of the stock in Delaware conferred quasi-in rem jurisdiction.

o They served notice of the suit by certified mail to the old addresses of the officers, and by publishing notice of the suit in a newspaper. --Issues = this case deals with individuals, NOT corporations. In order for the forum state to exercise in rem jurisdiction on a nonresident, must the nonresident have minimum contacts with the forum state? Or is property alone enough to confer jurisdiction? If so, must the cause of action be sufficiently related to the contacts the nonresident has with the forum state? --Holding and Rule (Marshall) = The previous judgment is reversed for lack of jurisdiction over the defendants A state cannot obtain PJ over a party based merely on that partys ownership of property in the state. Quasi in rem jurisdiction is subject to the constitutional requirements of minimum contacts. --Rules & Reasoning Whether or not a State can assert jurisdiction over a nonresident must be evaluated according to the minimum-contacts standard from International Shoe. In rem jurisdiction: due process under the 14th Amendment requires that the basis for jurisdiction must be sufficient to justify exercising jurisdiction over the interests of persons in the thing. o The presence of property in a state may allow jurisdiction by providing contacts among the forum State, the defendant, and the litigation, but there are exceptions.

In this case, the property serving as the basis for jurisdiction is completely unrelated to the plaintiffs cause of action. The presence of the property alone would not support the States jurisdiction. Appellants holdings in the corporation do not provide contacts with Delaware sufficient to support jurisdiction of that States courts over appellants. o Just because you have property in a state does not mean that state can hold jurisdiction over you; you must have minimum contacts for fair play and substantial justice International Shoe applies to in rem and quasi in rem jurisdiction plus in

personam jurisdiction. Delaware is not a fair forum for this litigation because the officers and directors have never set foot in the state and have not purposefully availed themselves of the benefits and protections of the state. --Concurring (Powell) The principles of minimum contacts is appropriate for in rem and quasi in rem suits. The stock in Delaware and the officers positions in the company do not constitute minimum contacts. However, hes not sure if ownership of real property within a state can constitute minimum contacts for jurisdiction purposes. --Concurring (Stevens) One who purchases stock shares on the open market can hardly be expected to know that he has thereby become subject to suit in a forum remote from his residence and unrelated to the transaction. However, this judgment may have further reaching principles that are necessarily correct in the law. --Concurring in Part and Dissenting in Part (Brennan) The use of minimum contacts is more than justified and it represents a sensible approach to the exercise of state court jurisdiction, however the majoritys approach to minimum contacts is wrong in this case = (D)s had minimum contacts. As a general rule, a state forum has jurisdiction to adjudicate a shareholder derivative action centering on the conduct and policies of the directors and officers of a corporation incorporated in that State.

Greyhounds choice of incorporation in Delaware is a prima facie showing of submission to its jurisdiction. There was a voluntary association with the State of Delaware invoking the benefits and protections of its laws. The majority opinion is purely advisory once it finds that the state statute is invalid. --Significance = this eliminates in rem jurisdiction!!! --Could Heitner bring suit in AZ? Heitner would have to argue minimum contacts there as well. NOTE: Having property in a state does not give the state jurisdiction over causes of action unrelated to the property unless the person also passes the minimum contacts test articulated in the International Shoe decision. If it is unconstitutional to exercise jurisdiction over the person directly then it should be unconstitutional to assert jurisdiction indirectly. The presence of property alone would not support jurisdiction absent other ties to the state if the action does not arise from the property OR that the property shows minimum contact

Notes and Problems 1. 2. A) The court did not decide that the property was irrelevant to the existence of jurisdiction because property can show contact. Property ownership alone is not the test for existence of jurisdiction. B) The court did not hold that stock is not property because you can get minimum contact through stock but having stock alone is not the test for jurisdiction. C) The directors can be sued in the state where the corporation is located because they can make contact through the corporation meetings in that state, etc. can serve as minimum contact. D) The court never said that the board of directors had not consented to being sued they only looked to see if the Delaware statute was constitutional according to the Due Process clause. E) The court only said that attaching property is only unconstitutional when there are no minimum contacts in the forum state where the property lies attaching property does not equal jurisdiction alone. 3. Hypo variation from class:

Sylvester, resident of LA, has inherited property from the will of a distant relative in Idaho. Noel, a resident of TN, sues Sylvester in Idaho based on injuries from a car accident that took place in LA, and Noel attaches the newly acquired Idaho property. QUASI IN REM trying to get jurisdiction over Sylvester by the ownership of the property o Likely not to satisfy the minimum contacts requirement o Sylvester only has contact because of the property, and the action does not rise out of the incident (incident takes place in LA, and shes from TN so she does not have a great interest in taking the suit to Idaho). o Sylvester could file an answer in Idaho to this suit not consenting however, if she did not answer or object to the litigation, then she consented to the jurisdiction of the Idaho court. Presence in the forum state can equal consent. o What happens if she tried the case in a court that had jurisdiction over Sylvester, and the judgment is handed down in favor of Noel then in order to get the debt paid back to Noel, could Noel try and get a hold of the Idaho property?

Sylvesters property in Idaho has a huge hole from a previous attempt to dig a pool a little boy falls in the hole, and brings suit against Sylvester to take the property. IN REM the suit comes out of the ownership of the proerty o Her contact is that she owns the property there, even thought she has never been to Idaho the court could have jurisdiction because Idaho is where the incident took place because of her property in Idaho (reason for action came from her contact in Idaho).

o Also if something were to take place to Sylvesters property, like a fire, then Sylvester would need the benefits and protection of Idaho for her property. o All the witnesses to the incident are in Idaho. 4. States can asserts jurisdiction over officers of a company that is incorporated in its state through a statute. The statute would mean that the people taking officer positions in the corporation would be subject to

jurisdiction in that state for actions arising from their corporation or from actions arising from their position as officers in the corporation. 5. Brennan made the point that courts should take into account the defendants circumstances and the forum states interest in the litigation. However, many courts are not completely decided on this issue. 6. 7. In rem jurisdiction and the Internet. Like other trademarks, Internet domain names are valuable pieces of intellectual property & legislation protects them from various sorts of abuse and poaching. Even though a defendants whereabouts are known, the defendant may not be subject to personal jurisdiction. The defendant can be subject to?? 8. Though Shaffer holds that the mere seizure of property does not establish jurisdiction, parties continue to seize property for other purposes: To prevent a party from moving assets out of the country pending litigation, OR to satisfy judgments 9. International Shoe applies to the individuals as well as corporations. In order for a state to exercise jurisdiction over a person not present in the state, minimum contacts are necessary. Those contacts may include ownership of property, but mere ownership of property does not conclusively establish jurisdiction like it did in Pennoyer. ***RULE: In modern times, Personal Jurisdiction comes from either consent, presence, or minimum contacts. *** 09/12/11 pgs. 96-104 3. Specific Jurisdiction: The Modern Cases Specific jurisdiction jurisdiction that stems from the defendants having certain minimum contacts with the forum state so that the court may hear a case whose issues arise from those contacts. Courts now do not look so much at the rules they disagree more about how to apply the rules to any given case (no wrong answer) Look at the slight differences of the facts of the case to see how cases could be changed in the decision handed down

World-Wide Volkswagen Corp. v. Woodson [non-resident defendant and stream of commerce doctrine]

--Facts The Robinsons purchased an Audi from Seaway (P1), a New York car dealership. One year later while driving through Oklahoma, another car hit them from behind, causing a fire which caused severe injuries to Mrs. Robinson and her two children. The Robinsons brought a products liability suit in OK state court against four parties including Seaway and its distributor, WorldWide Volkswagen (P2). o These were both New York corporations and conducted no business in Oklahoma. The defendants entered special appearances claiming that Oklahoma could not exert in personam jurisdiction over them by virtue of the Due Process Clause of the Fourteenth Amendment. --Procedural History (Woodson) Trial judge decides Oaklahoma does have personal jurisdiction over all (P)s Then (P)s filed a writ of prohibition in the Supreme Court of OK to restrain the district court judge (Woodson-D) from exercising personal jurisdiction over them. o SC denied the writ saying that the trial court was justified in PJ over (P) because (P) the product sold and distributed is so mobile that (P) could foresee that it had possible use in OK + the fact there was one automobile here meant there was most likely more. o Also, (P) receives a significant income from sale of the product in this case, and (P) should have known that their products were being used in OK US Supreme Court granted writ of cert.

--Issue = Can a forum state exercise in personam specific jurisdiction over a party when a product could foreseeably be moved to a different state? --Holding = Judgment reversed. (Ps) have no contacts, ties, or relations with OK, thus OK lacks jurisdiction over (Ps). --Reasoning Minimum contacts is a requirement. There is a TOTAL absence of the minimum contacts required:

o (P)s carry no activity whatsoever in OK as they close no sales or perform any services there. They do not avail themselves of the privileges and benefits of OK law. They solicit no business in OK through any salesperson or advertising. They do not sell any cars to OK residents directly. o The only contact between (Ds) and the forum state is that car made its way into OK this is NOT enough. Foreseeability is not a sufficient benchmark for personal jurisdiction under the Due Process clause. The foreseeability that is critical to due process is not the mere likelihood that a product will

find its way into a forum state. It is that the (Ds) conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there. Even if the D would suffer minimal or no inconvenience from being forced to litigate in a particular state and even if the forum state is the "best" place for litigation, DP can still deprive that state of taking jurisdiction over a case --Dissent by Brennan STREAM OF COMMERCE Based on foreseeability- a car sold in New York is mobile, and therefore it was foreseeable by World-Wide and Seaway that a car sold by them could subsequently lead to an injury in Oklahoma. However, the majority opinion of the Supreme Court rejected this argument, saying that foreseeability alone could not provide the basis for personal jurisdiction over a defendant and the two petitioning companies had no other contacts with Oklahoma There is too little weight applied to the strength of the forum States interest in the case. --Significance = a state does not necessarily have personal jurisdiction over a corporate defendant simply because its product was brought into the forum state. The defendant must have voluntarily connected himself or herself with the forum state via the notion that it purposely availed itself of the forum states laws. Here, just because the defendants put a product in the stream of commerce does not mean that they formed the sufficient contact with Oklahoma to be held under its jurisdiction. The companies

have used no benefits, nor purposefully availed themselves to the privileges of conducting business in the stat --There are two tests for personal jurisdiction: minimum contacts and fairness (Minimum purposeful contacts) Minimum contacts = The defendants conduct and connection with the forum State must be such that he should reasonably anticipate being haled into court there. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State = purposely injected products into the stream of commerce. --Specific Jurisdiction has some different requirements: Could the defendants reasonably anticipate being brought into a suit in the forum state ? Did they have advertise in the state directly so that those residents would buy their products? Are traditional modes of fair play and substantial justice being violated by exercising jurisdiction? -- Minimum contacts requirement is important because: It protects parties from the burden of litigating in foreign judicial systems, AND To ensure that states, through their courts, are not reaching over other states and walking on other states sovereignty Hypo from Note 2: Test for fair play and substantial justice Robinsons bring liability suit against NY retailer, Cali distributor, and Japanese manufacturer of the defective radio component part. Who is subject to personal jurisdiction? If there are minimum contacts, what about test for fair play and substantial justice? o 1) Burden on defendant o 2) Forum states interest in adjudicating the dispute o 3) Plaintiffs interest in obtaining convenient and effective relief

o 4) Interstate judicial systems interest in obtaining the most efficient resolution of controversies, AND o 5) Shared interest of several states in furthering fundamental substantive social policies Distributor they have the minimum contacts and they file some requirements from fair play and substantial justice

Notes and Problems 1. Principle of Stream of Commerce if the sale of a product of manufacturer or distributor is not simply an isolated occurrence but arises from the manufacturers or distributors efforts to serve either directly or indirectly other states markets, it is not unreasonable to subject it to suit in one of those states if its merchandise has caused injury to residents there. 2. 3. For most US defendants, there is some type of jurisdiction in a court state where the defendant is permanently domiciled, or state where the company is incorporated. 4. 5. 09/13/11 pgs. 105-117 Asahi Metal Industry v. Superior Court [foreign defendant & stream of commerce doctrine] split decision! --Older Facts Zurcher lost control of his motorcycle one day and collided with a tractor; the accident resulted in severe injuries for Zurcher and the death of his wife. Zurcher filed a products liability suit in Superior Court of Cali, where he claimed that the back tire was defective and caused the accident. He filed suit against Cheng Shin [the Taiwanese manufacturer] Cheng filed a 3rd party complaint seeking indemnification from (P) Asahi Metal Industry [Japanese manufacturer of the tire valve]. o Indemnification an action of compensation for loss or damage sustained Zurchers suit was later settled and dismissed, leaving only Chengs indemnity action against Asahi

--Facts for present case (P) moved to quash Chengs service of summons stating that it was inconsistent with Due Process clause in 14th amendment o (P) is a Japanese corporation who does business with Cheng and several other tire manufacturers. Chengs business transactions with (P) served for about 1% of its income. Cheng officials maintain that Asahi had been aware that Chengs tires were sold all over the US; however, (P)s officials maintain that they were not aware that they would be held liable for US lawsuits since they only sold valves to Cheng. --Procedural History The Superior Court of Cali denied the motion to quash the service of summons, stating that (P) clearly does business on an international scale thus it is not unreasonable that they defend claims of defect in their products sold. The Court of Appeals issued a writ of mandamus to the state of California telling them to quash the summons. Then the Cali Supreme reversed this decision, which lead (P) to appeal to the United States Supreme Court --Issue = Does a foreign companys mere awareness that its product is sold and delivered into the US constitute the minimum contacts needed for jurisdiction according to rules of fair play and substantial justice? --Holding = Judgment is reversed and remanded down for further proceedings. The service summons was later quashed. --Rules World Wide Volkswagen court rejected the assertion that a consumers unilateral act of bringing the defendants product into the forum state was sufficient constitutional basis for jurisdiction over the defendant --Reasoning (4/9=plurality) Part II-A: Minimum contacts! There must be a substantial connection between the defendant and forum state to fill the minimum contacts requirement. In accordance with Due Process, the connection must come about by defendants action purposefully directed toward the forum state.

o (D) cannot be constitutionally brought under Cali jurisdiction unless he makes a direct intended effort to serve the market of the forum state like advertising in the state, manufacturing specific parts for the state, etc. o The placement of his product in the stream of commerce does not constitute minimum contacts or an action purposefully directed at Cali = NO jurisdiction o Mere foreseeability or awareness that a product may end up in the forum state does not constitute enough constitutional basis for a court to exercise jurisdiction over a defendant *VERY IMPORTANT!*(8/9 = precedent through Majority) Part II-B: Courts must consider the burden on the defendant, the interests of the forum state, and the plaintiffs interest in obtaining relief + the interstate judicial systems interest in obtaining the most efficient resolution & the shared interest of several states in furthering fundamental substantive social policies o Looking at those factors, Calis jurisdiction over (D) would be unreasonable and unfair in accordance with due process: 1) There is a heavy burden on (D) to appear across the world to litigate and submit itself into a foreign nations judicial system; 2) there are very slight interests for (P) and the forum state since (P) isnt even a resident of Cali; and 3) (P)s purchasers of its product will place pressure on (P) because the purchasers can be held liable for tort action in US + Great care and reserve should be exercised when extending PJ internationally (4/9 = plurality) Part III: The facts of the case do not establish

minimum contacts so that exercise of personal jurisdiction is inconsistent with fair play and substantial justice --Evaluation There is only a plurality in some parts, which means those parts of the case do NOT give precedent [unless there is a majority] --Concurrence in part by Brennan, White, Marshall, and Blackmun While they all agree with the outcome of the case based on unreasonableness and unfair to place (P) under jurisdiction, they all

disagree with the how the application of minimum contacts test & the conclusion that (P) did not purposefully avail itself of Cali market. This is a very rare case where jurisdiction is NOT appropriate because it would unfair and unreasonable. Brennan stated that (P)s injection of its product into the stream of commerce constitutes minimum contacts. --Concurrence in part by Stevens, White, and Blackmun While they all agree with the conclusion of the case, they do not agree with the minimum contacts application for 2 reasons. First, the test for minimum contacts is not necessary because applying jurisdiction over (P) would be unfair and unreasonable. Second, if the test for minimum contacts should be applied here, then it is misapplied to the facts of the case. Mere awareness and purposeful availment are closely related here (P) has engaged in conduct that constitutes more than simply placing its product in the stream of commerce; plus (P)s financial gains should be taken into account here. --MY ARGUMENT! = (D) did not market his tire valves in the area these Cali residents are buying cars, not tire valves; also (D)s financial income from (P)s purchase of their parts is NOT very large.

Notes and Problems 4. Volvo [Swedish car maker] is partly owned by General Motors. Volvo buys brakes components from BrakeCo [US manufacturer in Illinois]. Volvo has national distributor in New Jersey & dealers throughout the US. (P) buys a Volvo in FA, but the brakes fail and injury ensues. (P) brings suit against everyone except General Motors. Who does court have jurisdiction over? A) Volvo they purposely avail themselves because they have a National Distributor who sells their cares all over the nation. We would want to know if Volvo has repair shops for cars in Florida. B) BrakeCo based on Asahi, they might not have jurisdiction. We would want to know how much business they did with Volvo + if they advertised their brakes in Florida. If these are the brakes sold to Volvo, then these would also be the brakes sold in the Volvo

stores thus they would avail themselves through Volvo because they knew their products would be in Volvo separately. C) National Distributor they have purposefully availed themselves in terms of contacts because they reached out nationally. There wouldnt be a big burden on the (P) because they bought the car in Florida; there wouldnt be a big burden on (D) because they reached out nationally to sell the cars. D) Dealer yes they are selling cars in Florida.

**Specific Jurisdiction only going to be if the particular incident arises out their contacts with that state. Thus the brakes caused the accident so it arises out the contact; however, with an employment dispute over the way the business is run, there would be no jurisdiction in other states because the incident arose out of Illinois ***Question: who has to prove right of a courts jurisdiction? Does the defendant have to prove that the court does not have jurisdiction? This all seems very discretionary!*** Plaintiff has the burden to prove that jurisdiction exists!!!!! Burger King v. Rudzewicz --Facts Rudzewicz (D) and MacShara entered into a franchise contract with Burger King. (P) would open a restaurant in Michigan. Burger King was incorporated in Florida and incorporated a choice of law clause in the contract Florida law would control all possibly lawsuits. The contract allowed (D) to use Burger Kings trademarks and service marks for 20 years in Michigan. An economic downturn led to decreased sales and (D) failed to meet his obligations under the contract. --Procedural History Burger King brought a diversity suit against (D) in Florida. (D) moved to dismiss for lack of personal jurisdiction because they did not have sufficient contacts with Florida.

The trial court denied (D)s motion and ruled that jurisdiction was proper under Floridas long arm statute. The court entered judgment in favor of Burger King and (D) appealed. CoA held that while (D) had sufficient contacts with the state of Florida to satisfy the states long arm statute, the exercise of personal jurisdiction was fundamentally unfair and was a violation of due process. Burger King appealed. --Issues = To what extent can a contract with a choice of law clause constitute a contact for the purposes of due process analysis and minimum contacts analysis? --Holding and Rule (Brennan) The court held that jurisdiction is proper when contact with the forum state proximately results from actions by the defendant such that they create a substantial connection with the forum state. There must be fair warning to a defendant that he can be brought under lawsuit in the forum state. The fair warning requirement is satisfied when a party has purposefully directed his activities at the forum. Parties who reach out and create continuing relationships and obligations in another state are subject to regulation and sanctions in that state for the consequences of their activities. The court held that in this case the franchise agreement with Burger King allowed (D) to benefit from an association with a Florida corporation for twenty years. (D) had continuing and direct contacts with Burger King. o Thus thee fact that (D)s contacts were purposeful allowed the state to exercise personal jurisdiction despite that those contacts were minimal. The contract indicated that Florida law would apply. It cannot be a

shock that (P) would sue (D) there for a breach of the contract in light of the clear contractual terms of the agreement. --Dissent (Stevens) It is unfair to require a franchisee to defend a case of this kind in a forum chosen by the franchisor. Rudzewicz did no business in the state of Florida. His principal contacts were with the Michigan BK office. Rudzewicz had a local operation with far less resources than

Burger King. It would be fundamentally unfair for Rudzewicz to be required to defend in Florida. Note: It is important to remember that the contract had choice of law clause, but not a forum selection clause. --Significance = even though the contacts in this case are very slight and would not constitute jurisdiction alone, the test for jurisdiction that falls under Due Process [reasonable and fair] can serve to establish jurisdiction. 09/17/11 pgs. 117-122 Pavolich v. Superior Court [sliding scale and effects test for Internet sites] --Facts. (P) Pavolich, a resident of Texas, was the founder and project leader of the website LiVid. The site consisted of a single page with text and links to other websites. The site only provided information; it did not solicit or transact any business and permitted no interactive exchange of information between its operators and visitors. Consistent with these efforts, LiVid posted the source code of a program named DeCSS on its Web site as early as October 1999. DVD Copy Control Association, Inc. was the manufacturer of DeCSS. DVD Copy is organized under the laws of Delaware with its principal place of business in California. --Procedural History DVD sued (P). In its complaint, DVD Copy alleged that Plaintiff misappropriated its trade secrets by posting the DeCSS program on the LiVid Web site. In response, Plaintiff filed a motion to quash service of process, contending that California lacked jurisdiction over his person. The trial court denied Plaintiffs motion, and this appeal followed. --Issue = Can a state court exercise jurisdiction over a non-resident whose only connection to the state is an internet posting? --Holding = Reversed. Jurisdiction was improper. --Reasoning Specific jurisdiction = no contacts. (P) does not reside or work in Cali. (P) has not solicited any business in Cali or has no business

contacts in Cali. At the time LiVid posted DeCSS, (P) did not know that the organization manufacturing DeCSS was DVD Copy. o Website must be interactive to show contact with state, and (P)s website was merely passive. Merely asserting that a defendant knew or should have known that his intentional acts would cause harm in the forum state is not enough to establish jurisdiction. Instead, the plaintiff must also point to contacts that demonstrate that the defendant expressly aimed its tortious conduct at the forum. Specific jurisdiction requires more than a finding that the harm

caused by (P) is primarily felt within the forum. Jurisdiction over him must be both reasonable and foreseeable so that it does not violate substantial notions of justice and fair play. --Dissent. Baxter, J. dissented. By intentionally posting an unlicensed decryption code of DVD Copys product on his website, (P) was not merely aiming his conduct at specific persons or companies, but an entire industry. Since (P) knew that at least two of the industries companies were located in Cali, his tortuous conduct could be said to be aimed at the forum state. --Sliding Scale for Internet Sites The likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of an entitys commercial activity over the Internet. This is based on a determination of the website's "interactivity" o The greater the commercial nature and level of interactivity associated with the website, the more likely it is that the website operator has purposefully availed itself of the forum state's jurisdiction. Interactivity is measured through an examination of the website's features and intended uses. o Websites designed to facilitate or conduct business transactions will often be characterized as interactive.

o A passive website that simply makes the information available to the user will be less likely to have a basis for personal jurisdiction. Websites are effectively divided into three categories: o 1) websites that conduct business over the Internet, o 2) websites where users exchange information with the host computers, and o 3) websites that do little more than present information NOTE: Websites that do business over the Internet will yield a finding of purposeful availment, while websites that simply present

information will not. --Effects Test [deals with an intentional act!] This test comes from Calder v. Jones. This deals with cases where there are insufficient interactivity or minimum contacts, but where an action is targeted at a particular forum. In Calder, a Cali resident in the entertainment business sued the National Enquirer, located in Florida, for libel based on an allegedly defamatory article published by the magazine. o Personal jurisdiction was properly established in Cali because of the effects of the defendants' conduct in that state. Since the article concerned a Cali resident with a career in Cali and relied on Cali sources, the Court found the defendants actions were expressly aimed at Cali. In the Internet context, the effects test can be used to examine the exact nature of a defendant's Internet activities to determine whether its out of state actions were directed at parties or entities within the forum state. This is referred to as "purposeful direction," which requires o (a) an intentional action, that was o (b) expressly aimed at the forum state, with o (c) knowledge that the brunt of the injury would be felt in the forum state. If a court finds that a defendant's actions meets the standard of purposeful direction, then personal jurisdiction may be asserted based on Internet activities which do not meet the requirement of interactivity or minimum contacts needed for personal jurisdiction.

Notes and Problems 1. Yes the court did reach the correct verdict because (P) did not profit from anything on his website he was simply spreading knowledge. 2. 09/19/11 pgs. 122-127 4. General Jurisdiction This jurisdiction is a courts authority to hear all claims against a defendant at the place of defendants domicile or place of service. There is no need to show an existing connection between the claims and the forum state. For general jurisdiction over a corporation, there must be evidence of company incorporation or principal place of business in forum state trying to exercise jurisdiction o Example: General Motors, incorporated in Delaware and with its principal place of business in Michigan, can be brought under suit in either state o **However, courts tend to be very weary of granting general jurisdiction because then potentially a corporation could be sued anywhere they do business! For general jurisdiction over individuals, the suit can be brought in the state were the person is domiciled

Perkins v. Benguet Consolidated Mining Co. --Facts: (D) had been operating a continuous and systematic, but limited part of its business in OH. (D) was served while in OH. (P) sued (D) in OH for dividends owed and failure to issue stock certificates to her. However, the cause of action did not arise in OH and does not relate to any business activities in OH. --Procedural History: Trial court found for (D). OH CoA affirmed judgment for (D). OH Supreme Court affirmed judgment for (D). US Supreme Court granted writ.

--Issues = Can a state exercise jurisdiction over a foreign corporation when it is served in the forum state in accordance with Due Process? --Holding = A court can exercise jurisdiction in this way. Vacated and remanded down for further proceedings. --Reasoning A state may exercise jurisdiction over a foreign corporation, even when the cause of action does not arise in the state or relate to any of the corporation's activities in the state, if the corporation carries on continuous and systematic corporate activities in that state general jurisdiction. The president (also GM and principal stockholder in company) returned to his home in OH during a war in the Philippines (where company was based). While in OH, he maintained an office and did many things on behalf of the company. He kept office files, carried on correspondence relating to the business and its employees, drew and distributed salary checks, maintained bank accounts that contained company funds, held director's meetings, etc. o Thus, he carried on in OH a continuous and systematic supervision of the company.

Helicopteros Nacionales de Colombia, S.A. v. Hall --Facts. (P) Helicopteros is a Colombia corporation that provides helicopters for oil and construction companies. (P) was hired by Consorcio and its Texas venture. One of (P)s helicopters crashed in Peru, killing four of the ventures employees. (D) employees brought this wrongful death action against (P) in Texas. --Procedural History The trial court denied (P)s motion to dismiss for lack of in personam jurisdiction. There was a jury trial and verdict for (P). Heli then appealed. Texas CoA reversed the judgment for lack of jurisdiction. The Texas Supreme Court reversed the CoA judgment on the grounds that the Texas long-arm statute can reach as far as the Due Process Clause will permit. (P) then appealed to US Supreme Court

--Issue = If the cause for lawsuit does not arise from a defendants contacts with the forum state, what constitutes continuous and systematic contacts to confer general jurisdiction? --Holding = There is no jurisdiction over (P) so judgment is reversed. --Reasoning and Rules General jurisdiction is reviewed here Heli must either be incorporated in Texas, have its principal place of business in Texas, OR some approximation of business is in Texas. Facts: (P) conducted some contract negotiations in Texas, bought 80% of its helicopters for the business in Texas, received technical consultation from a person in Texas, and was paid with checks drawn on a Texas bank. These are not a sufficient contacts to justify general jurisdiction under precedent that mere purchases are not sufficient contacts. o If the purchase is not related to the action, or if it cant be proved that it enhanced the nature of Defendants contacts with Texas, it is not sufficient.

09/25/11 pgs. 127-134 + BB case Gator.com Corp v. L.L. Bean, Inc. --Facts --Procedural History --Issue --Holding --Rules --Reasoning --Policy Burnham v. Superior Court --Facts (P) Burnham is a New Jersey resident. (P) was married to a woman, but they decided to divorce. Before divorce, wife moved to Cali with kids. (P) filed for divorce in NJ on grounds of desertion but, previously (P) and wife had decided to filed for divorce under irreconcilable differences.

(P) visited Cali on business, after which he went to visit his children where his wife resided. Upon returning the children to his wifes home, (P) was served with a Cali court summons because his wife filed for divorce there. --Procedural History (P) made a special appearance in Cali for the purpose of filing a motion to dismiss on the ground that service was not proper because the court lacked personal jurisdiction over him. The Superior Court denied the motion stating that systematic and continuous contacts only applies to corporations. US Supreme Court granted certiorari. --Issue = Can a state court apply jurisdiction over a non-resident who was personally served with process while temporarily in that state, in a suit unrelated to his activities in that state in accordance with Due Process? --Holding = Affirmed, Cali has jurisdiction. --Rules & Reasoning Scalia, Chief Justice, Kennedy, & White o Jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard. o The contacts & traditional notions of fair play and substantial justice only came about because of situations where the other person is not present in the state. Brennan, Marshall, Blackmun, and OConnor o Physical presence in a state permits jurisdiction not because service of process occurred on the person in the state, but because by voluntarily coming into the state, the defendant avails himself of the benefit and privileges of the law of the state, even if only for a short period of time. Stevens he was the swing vote o This was a very easy case to decide given the historical evidence and considerations of fairness.

--Policy An individuals physical presence in a state at the time process is served upon them satisfies traditional notions of fair play and substantial justice.

Seems a little lopsided comparing individuals & corporations if someone is physically present in a state, then that state automatically has jurisdiction; if a corporation does thousands of dollars of business over the internet with a state, that state may not have jurisdiction The strongest argument is that an individual is under his own control, whereas a corporation cannot control every single one of its agents and workers from going anywhere The individual chooses to go somewhere on his own, whereas workers and agents of a corporation go places without actually representing the corporation (representing himself individually)

**Make a chart for specific jurisdiction and general jurisdiction** General Jurisdiction o At home jurisdiction o Continuous and systematic contacts Specific Jurisdiction **Physical presence is supposed to be general jurisdiction but it kind of falls between specific and general jurisdiction because it doesnt really fit into either category very well This only applies if you voluntarily enter the forum state you cant be thrown into the trunk of a car and taken to that state to be served Process immunity if you end up entering the state after being served, then you have submitted to jurisdiction 09/27/11 pgs. 134-140 C. Consent as a Substitute for Power A defendant can consent to jurisdiction in a forum either before the lawsuit or during the outset of the lawsuit o Contacts in a state DO NOT constitute consent to jurisdiction Consent is normally used by parties in cases where there was a prior contractual dealing National Equipment Rental v. Szukhent when (D)s defaulted on their contract, a clause on the back of the contract was held as

consent because it stated that someone in the forum state would serve as the agent for service of process o The jurisdiction in the forum court most likely would not have held without the clause on the back of the contract NOTE: Federal courts have jurisdiction over admiralty matters, which include the interpretation of contracts for carriage of passengers by sea

Carnival Cruise Lines, Inc. v. Shute --Facts (D) Shute purchased tickets for a 7-day cruise on a ship owned by (P) through a Washington travel agent. The face of each ticket contained terms and conditions of passage, which included an agreement that all matters disputed or litigated subject to the travel agreement, would be before a Florida court. o Forum Jurisdiction clause!! (D) boarded the ship in Cali, which then sailed to Mexico before returning to Los Angeles. While the ship was in international waters, (D) was injured from slipping on a deck mat.

--Procedural History (D) filed suit in Federal District Court in Washington. (P) filed a motion for summary judgment, alleging that the clause in the tickets required (D) to bring their suit in Florida. --Issue = Should the court enforce the Forum-Selection clause forcing individuals to submit to jurisdiction in a particular state? --Holding = Yes. The US Supreme Court held that the CoA erred in refusing to enforce the forum-selection clause. --Rules & Reasoning Forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness, but where they are not lacking in fairness, they will be enforced. This clause passes fundamental fairness! (D) consented to the jurisdiction by signing the contract because they even admit that they knew about the Forum-selection clause in the contract even though they didnt get to negotiate it

(P) had many reasonable causes for having the Forum-Selection clause included in the contract: o 1) A cruise line has a special interest in limiting the forums in which it can potentially be subject to suit they would have to travel to several different forums for every incident because their passengers come from all over the US o 2) Spares litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that would be used in deciding the useless motions o 3) The clients who pursue these lawsuits are enjoying lowered

fares for cruises by virtue of this clause because it limits the forums the cruise line can be sued in --Dissent by Stevens & Marshall. Adhesion contracts, particularly forum-selection clauses, are void as contrary to public policy if they were not freely bargained for, create additional expense for one party, or deny one party a remedy. --Discussion Forum-Selection clauses are enforceable in principle. They are not necessarily enforceable in all situations, but it can be enforced because it is not unconstitutional in principle does not violate the due process clause of US Constitution Notes and Problems 1. 2. 3. 4. A) Choice of Law clause the person agreeing to a contract with this clause is only agreeing to a choice a law. This is not enough to place somebody under the jurisdiction specified in the clause. B) Consent to Jurisdiction clause if the person is brought in suit under that specified states jurisdiction, then he/she will not argue against jurisdiction. However, he/she can bring suit somewhere else if they choose to. C) Forum Selection clause parties are saying that they will be subject to personal jurisdiction in the specified forum state. They are consenting to jurisdiction through this clause in the contract.

J. McIntyre Machinery v. Nicastro no majority!! **This is a specific jurisdiction case. Requirements to be met: Minimum Contacts Suit must arise out of those contacts Fair play and substantial justice --Facts (D) injured his hand in NJ while using a metal-shearing machine. Machine is manufactured in England by (P), where (P) is incorporated and operates. (D) filed this products-liability suit in a state court in New Jersey, where the accident occurred; (P) then sought to dismiss the suit for want of personal jurisdiction. (D)'s jurisdictional claim was based on three primary facts: o A US distributor agreed to sell (P)'s machines in this country; o (P) attended trade shows in several states; and o Four of (P)s machines ended up in New Jersey. --Procedural History (P) moved to dismiss (D)'s products-liability suit arguing lack of personal jurisdiction. Under the "stream-of-commerce" doctrine, the Supreme Court of NJ held that due process was not violated by the NJ court's exercise of jurisdiction. o Reasoning: The State Supreme Court held that NJ courts can exercise jurisdiction over a foreign manufacturer without violating due process so long as the manufacturer knew or reasonably should have known that its products are distributed through a nationwide distribution system that might lead to sales in any of the States. Certiorari was granted. --Issue = was NJ Supreme Court correct in handing down judgment that NJ courts have jurisdiction over (P)? --Holding = Supreme Courts judgment is reversed no jurisdiction. --Different Judges Kennedy, Chief Justice, Scalia, & Thomas o A court may subject a defendant to judgment only when the defendant has sufficient contacts with the sovereign "that the

maintenance of the suit does not offend 'traditional notions of fair play and substantial justice International Shoe. As a general rule, the sovereign's exercise of power requires some act by which the defendant "purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws" Hanson. No "stream-of-commerce" doctrine can displace that general rule for products-liability cases. o (P) did direct activities at the entire US, but this is not enough! (P) must have engaged in conduct purposefully directed at NJ, but (P) didnt (P) had no office in NJ; it neither paid taxes nor owned property there; and it neither advertised in, nor sent any employees to NJ. Trial court found that (P) did not have a single contact with NJ apart from the fact that the machine in question ended up there. Brier & Alito Concurs in Judgment, but not ^reasoning o The outcome of this case is determined by our precedents. o Based on the facts found by the NJ courts, (D) failed to meet his burden to demonstrate that it was constitutionally proper to exercise jurisdiction over (D), a British firm that manufactures scrap-metal machines in Great Britain and sells them through an independent US distributor. The Supreme Court of NJs judgment should be reversed. Ginsburg, Sotomayor, & Kagan dissent o (P) seeks to develop a market in the US for machines it manufactures. It hopes to derive substantial revenue from sales it makes to US purchasers. Where in the US buyers reside does not matter to (P) its goal is simply to sell as much as it can, wherever it can. It excludes no region or State from the market it wishes to reach. But, it prefers to avoid products liability litigation in the United States. To that end, it engages a U.S. distributor to ship its machines stateside jurisdiction Basically, do we really want to allow manufacturers to hide behind distributors for liability?

o (P) knew that they were selling their product in a certain state to a resident of that state! Pay attention to Part IIs reasons given on pg. 7!!*** --Significance The differing opinions here show how the requirements for jurisdiction can be applied completely different by justices The signal concurrence says that one single sale does NOT constitute jurisdiction over a company This seemingly runs against Volkswagen maybe (D) could have given greater evidence for jurisdiction, but (D) didnt The difference that may have made this case easier was if (D) had filed suit against (P)s US company & then attached the UK company after OR had gone to the UK to file suit

**14th amendment is in the US Constitution it protects all peoples right to due process. Federal Courts go through the same analysis that state courts use to determine jurisdiction** Goodyear Dunlap Tires v. Brown --Facts (D) NC residents sons died in a bus accident outside France filed a suit for wrongful-death damages in NC state court. Alleging that the accident was caused by tire failure, they named as (P)s Goodyear USA [an Ohio Corp] & three Goodyear USA subsidiaries, organized and operating in Luxembourg, Turkey, & France. (P)'s tires are manufactured primarily for European and Asian markets and differ in size and construction from tires ordinarily sold in the United States. (P)s are not registered to do business in NC; have no place of business, employees, or bank accounts in the State; do not design, manufacture, or advertise their products in the State; and do not solicit business in the State or sell or ship tires to NC customers. Even so, a small % of their tires were distributed in NC by other Goodyear USA affiliates. --Procedural History The trial court denied (P)'s motion to dismiss the claims against them for want of jurisdiction. The NC CoA affirmed, concluding that

the NC courts had general jurisdiction over (P), whose tires had reached the State through "the stream of commerce." This could NOT be specific jurisdiction because the action that the suit is based on did not take place in NC, nor does it deal with any contacts with the state of NC.

--Issue --Holding --Decision A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so "continuous and systematic" as to render them essentially at home in the forum State. o Specific jurisdiction, on the other hand, depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation. o In contrast to general jurisdiction, specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. 09/28/11 pgs. 140-154 D. The Constitutional Requirement of Notice Mullane v. Central Hanover Bank & Trust Co. --Facts Central (D) set up common fund pursuant to a New York statute allowing the creation of common funds for distribution of judicial settlement trusts. There were 113 participating trusts. (D) petitioned for settlement of its first account as common trustee. Some of the beneficiaries were not residents of New York. Notice was by publication for four weeks in a local newspaper. Appellee had notified those people by mail that were of full age and sound mind who would be entitled to share in the principal if the interest they held became distributable.

NY banking law said this was a sound way to serve process to others easier to set up a trust and maintain a trust --Procedural history (P) was appointed as special guardian and attorney for all persons known or unknown who had or might have any interest in the income of the common trust fund. (P) appeared specially, objecting that notice by publication, permitted under the applicable statute was inadequate to afford the beneficiaries Due Process under the 14th Amendment and that therefore jurisdiction was lacking. --Issue = Is notice by publication reasonable and proper notice under the Due Process of the Fourteenth Amendment? --Holding = Reversed and Remanded because notice given by publication is insufficient under the Due Process when the parties' addresses are known. To satisfy due process, the form of notice used must be reasonable in light of the practicalities and peculiarities of the specific case. --Rules and Reasoning There has to be notice and opportunity for a hearing appropriate to the nature of the case. (P)s could potentially be deprived of property here, as the proposed disposition cuts off their rights to sue for negligent or illegal impairments of their interests. There need not be personal service, notice has to be reasonably calculated, under all the circumstances, to apprise interested parties of the pending action and afford them an opportunity to present their objections. o You do not have to notify all the beneficiaries when the trust concerns many small interests. Sending notice to most of them will protect their interests sufficiently.

o The people not reached would most likely be protected by the majority that was reached because they would most likely raise the issues of those who didnt know about the case The NY Banking Law violates the due process clause of the 14th Amendment because contacting beneficiaries by mail at their last known address is not particularly burdensome. --Discussion

The majoritys opinion illustrates that notice by publication can be used, but it will not suffice only because it would be burdensome for the plaintiff to notify all parties involved. If the plaintiff knows of a way to contact the parties, then the plaintiff must bear that expense. Mailing notice to an address, if known, will suffice. Notice by publication will suffice only if there is no practical way of knowing the identity or location of the party.

--In light of the above case, looking back on Pennoyer Oregon could have had jurisdiction over Pennoyer. Pennoyer could argue that the notice was not reasonably calculated. What if Mitchell states that he has mailed service to Pennoyers last known address & has heard that Pennoyer is hiding to avoid service in the lawsuit looking at the above case, it only has to be reasonably calculated; it doesnt need to be perfect Notes and Problems 1. 2. 3. A) What if there are 5 people involved in the trust, and only 4 actually receive notice of a lawsuit; judgment is entered against the defendants. What happens now? This is all circumstantial. Courts have stated that there is a greater obligation to get all 5 notice of the lawsuit because it is less likely that all 5 will be able to protect each others interests and bring up everyones objections. *Mail is not usually held up as proper in court unless it is proven that those people actually received the mail of process* B) You would have to look at the cost of service compared to the cost of a judgment weighed against the defendant value of a suit vs. cost of service. There is also the rationale that if you can find somebody for service of process, then you have to spend whatever money to get to that person. *If you know the name and address of the person, then notice in a publication is NOT adequate service or process* Just keep in mind that Mullane only tells us about how the US Supreme Court sees the outer bounds of proper service of process.

But Federal Rules of Civil Procedure and state laws deal with their own legal ways to serve process of people Rule 4 deals with service of process; it spells out exactly what the plaintiff must do for correct service of process. Basically says that mail is OK. *LOOK IT UP* o Section (d) waiver of service of process tries to lessen the expenses plaintiffs pay for service of process and extend the time defendants have to answer the service o Defendant cant object to service of process if he waives service of process but you can object to jurisdiction

4. 5. 6. Notes on Service of Process 1. 2. A) She could write a letter, or she could fill out form 5 and include form 6. She needs to follow rule 4 of FRCP. B) If he ignores it, then he will have to pay how ever much the cost of service will be. You would advise the client not to fill out the waiver of process of service under the circumstances that you believe there is no way the plaintiff can properly serve your client if plaintiff cannot even serve your client, then theres no reason to even pay attention to the complaint. This applies to only a very small amount of cases. C) When the defendant is in the US, he has at least 30 days to answer with a waiver of summons [from when plaintiff sends it]. Answering the complaint will go to 60 days by answering with the waiver [from the original 20 days if you were actually served]. 3. 4. B) 5. 6. *There wont be any obscure questions about service or process, just know the basic principles of service or process!* Class Notes from 10/3/11

Specific Jurisdiction 1. Asses Contacts: purposeful availment? --Directed activities or targeted the forum state --Enjoy the rights, privileges, and protection of the forum state --Effects test --Sliding scale: internet contacts only; helps prove whether someone has purposefully availed themselves *Expectations are not enough you need real actions* 2. Suit arises out of the contacts 3. Fair play and substantial justice also known as Reasonableness Test --There are 5 factors to look at when taking this into account

General Jurisdiction 1. Asses Contacts: continuous and systematic? --Corporations can be subject to jurisdiction where they are incorporated make their home [like an individual]

10/03/11 pgs. 154-164 E. Self-Imposed Restraints on Jurisdictional Power: Long-Arm Statutes, Venue, and Discretionary Refusal of Jurisdiction --There are 3 settings that are also taken into consideration before courts can exercise jurisdiction: Long-Arm Statutes, Venue Laws, and Doctrine of Forum Non-Conveniens --Each of the above represents a situation in which the legislature or courts have framed rules that restrict where a lawsuit may take place even where the US Constitution would pose no obstacles I. Long-Arm Statutes as a Restraint on Jurisdiction --A court may exercise jurisdiction over a defendant only when the state or federal government authorizes it to do so & the authorization must be constitutional as applied to the case in question.

--Because Pennoyer had conceived state court jurisdiction extensions as near-physical exertions of state power, states authorizing courts to reach beyond their own borders came to be known as long-arm statutes --States are extending their jurisdictional arms Some states have created long-arm statutes that reach as much jurisdiction as the Constitution allows o Example: California as broad as the jurisdiction powers given by the US Constitution Other states have long-arm statutes limiting jurisdiction to specified occurrences o Example: Florida only takes parts of the jurisdiction powers given by the Constitution some states only want a little power

Some states want more power than the Constitution gives to them

US Constitution gives this much jurisdictional power

*Why would a state want to lessen their power? They may not want to congest their courts with a ton of cases. Gibbons v. Brown --Facts (P) was driving with (D) and Mr. Brown in Canada in 1994. (P) allegedly gave faulty directions to Mr. Brown, who was driving. Mr. Brown ended up driving the wrong way down a one-way street into a head-on collision that injured both passengers.

--Procedural History (P) from Texas sued Mr. Brown in Florida. Two years later, (D) brought this Florida action against (P) to recover for her injuries. o There was general jurisdiction over Brown in the first suit (D) alleged that (P) subjected herself to personal jurisdiction of the Florida court by virtue of having brought the prior lawsuit. (P) filed a motion to dismiss, claiming that the provisions of (D)s original complaint were inadequate to satisfy the Florida long-arm statute. o (D) argues that (P)s original suit fulfills that long-arm statute part because (P) is engaged in substantial and not isolate activity in the state of Florida --Issue = Does previously availing oneself of a jurisdiction as a Plaintiff automatically render one subject to jurisdiction later? --Holding & Decision = No, trail court directed to dismiss (D)s complaint. --Rules & Reasoning Without more, the fact that a current Defendant previously brought a suit in the forum state does not constitute sufficient activities to subject the current defendant to personal jurisdiction in the state. o The only contact she has to the state now is defending the suit in question here no other contacts or activities The length of time between the 2 actions was too long of a gap; (P) was not involved in the prior suit; and (P) is not engaged in any other activity in the state besides defending this claim. --Discussion The parties agreed that as a general rule in Florida, a Plaintiff, by bringing an action, subjects herself to the jurisdiction of the court and to subsequent lawful orders entered regarding the same subject matter of that action. However, the Court refused to hold that by filing a lawsuit in 1995, Plaintiff should have to automatically consent to Florida jurisdiction when she was named as a defendant in a related lawsuit two full years later.

*If Mr. Brown file counterclaims against Gibbons, then he most likely could file it because of efficiency of the courts since it would be the same case with the same facts affecting it.

*What would happen if Mrs. Brown filed suit against Gibbons in 2 months of the first suit filed by Gibbons was started? Would Florida have jurisdiction? *If a court finds that it has jurisdiction over a defendant under long-arm statutes, it would still need to look at whether that jurisdiction still falls under the Constitutions grant of jurisdiction If the long-arm statute does not include jurisdiction over a defendant, then Notes and Problems 1. 2. 3. The relation between long-arm statutes and the Due Process clause: Analytically there are 2 distinct inquiries the court must first decide if the long-arm statute includes the current case, and second the court must decide if asserting jurisdiction was constitutional Some states long-arm statutes appear to be more restrictive than the Constitution, but that does not mean that the statute is as strict as the text seems o Some courts have looked at these statutes and decided that they encompass more than at first glance 4. The Federal Interpleader Act has given the federal courts the power to serve process on anywhere in the nation, and this power has been interpreted to include personal jurisdiction. II. Venue as a Further Localizing Principle --Like personal jurisdiction, venue determines where litigation will take place Unlike personal jurisdiction, venue flows solely from statutory sources rather than constitutional sources. General federal statute dealing with venue is 28 USC 1391: portions (a) & (b) of this statute put venue where any defendant resides or where a substantial part of the events or omissions giving rise to the claim occurred Unlike personal jurisdiction, venue locates litigation not just in a state but also in a particular federal judicial district within the state o If someone is clearly subject to jurisdiction in Florida, there are 3 different venue of federal judicial districts The different districts of each state are set out by federal statutes

o States have venue provisions and federal venue provisions --If you are deciding to bring suit and are trying to figure out what venue is appropriate, then you can look at the 2 provisions in 28 USC 1391(a). You may find venue in one place for the first one and another venue somewhere different in the second one. Example: Person A wants to bring suit so he looks at a possibly venue. He finds that he can bring suit against defendant in NY; he decides that he may not want to bring suit there because the courts are congested. So he looks at the second provision of 28 USC, and he finds that he can also bring suit in Vermont. Notes and Problems 1. A) There is only one defendant so the proper venue could be Southern District of NY [according to 28 USC 1391(a)] & maybe even a few others. 2. Since one of the plaintiffs resides in NY and the other does his business in NY, the venue would be NY BUT we need more info about where the breach of contract took place and where the contract came from. 3. Southern District of NY would be the most proper because one is the resident & the other does business (the business side give contacts and reverts back to Perkins. 4. A) Options include Nevada because that is where the accident took place, or California because that is where the defendant resides. There would be personal jurisdiction over defendant because that is where he lives; there would be specific jurisdiction over the defendant in Nevada because that is where the reason for suit arises. B) Options under 28 USC 1391(a) include Canada because the defendant resides there, Nevada because that is where the accident took place (the reason for the suit), or really any suit because the defendant is an alien 28 USC 1391(d) says that an alien may be sued in any district. Venue does open up more options without looking at personal jurisdiction, so remember that these must work together! 5. The two provisions of the USC 1391 do have very minimal differences, but they are important to keep in mind. Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. --Facts & Procedural History

(P)s Dee-K and Asheboro were Virginia and North Carolina corporations that bought rubber thread from the Defendants to make bungee cords. (P)s sued a number of corporations producing the rubber thread, which corporations were located in Malaysia, Indonesia, and Thailand. (P)s alleged a broad conspiracy among the (D)s to fix prices and restrain competition in rubber thread. (D)s challenged jurisdiction and venue. --Issue = Is there United States personal jurisdiction over the Indonesian manufacturer that consummates its sales of thread in Indonesia? Is venue proper in the Eastern District of Virginia? --Holding & Decision = Maybe, need more info! Yes. The Supreme Court of the United States held that due process was satisfied by the Defendants appointment of exclusive U.S. sales agents and its customizing of its products for the U.S. market. Yes. The Supreme Court has held that aliens may be sued in any federal judicial district. o USC 1391(d) covers only the alien defendants, but we still have the defendants who are from USA Foreign defendants can be sued anywhere (aliens). Some of the contacts of American defendants are sparse and some seem to be located in the western district rather than the eastern district. --Discussion Students should realize here that the mere fact that a Defendant is a foreign corporation does not automatically escape Federal court jurisdiction. The Supreme Court points out that FRCP 4(k)(2) provides that a Defendant who is not subject to the jurisdiction of any state court that is served with process is subject to personal jurisdiction in the Federal courts as long as the assertion of jurisdiction is consistent with federal law and does not offend the US Constitution. Thus, so long as the actual method of service of process complied with existing federal law, jurisdiction over a foreign corporation is appropriate where the Constitutional test of fair play and substantial justice in asserting jurisdiction is satisfied.

10/09/11 pgs. 164-171

III. Declining Jurisdiction: Transfer and Forum Non-Conveniens Both state and federal courts may decline to exercise jurisdiction even though they possess it. As more and more cases are filed & courts become backed up with them, more courts have exercised the power to decline to exercise jurisdiction If a case is brought into an improper district, then the court can transfer the case to another judicial district; however this transfer only takes place in the Federal District System (see Piper case) o The court can either dismiss the case for improper jurisdiction, or may transfer the case to another venue Forum Non Conveniens case is dismissed (but under the assertion that the case will be moved to a foreign court system) o Forum Non-Conveniens is a common-law doctrine, NOT a statute so it does not apply to Louisiana o If a case is dismissed this way in federal court, it is normally so the case can be filed in another country. If a case is dismissed this way in state court, it is normally so the case can be refilled in another state.= Transfer under 28 USC 1404, 1406, 1631 this only applied to federal courts and it allows the federal courts to move cases around the country for the convenience of parties and witnesses in the interest of justice o While reading Piper, take notice that (D)s first removed to federal court and then sought transfer to a different judicial district under 1404 o 1404 permits transfer for convenience of parties and witnesses in the interest of justice it gives federal courts the ability to move cases within the system without have to dismiss and re-file Both of these dismissals come about in circumstances where the court has the power to exercise jurisdiction, but for reasons of justice or efficiency, the court decides not to A. Piper shows the doctrine of forum non-conveniens. B. Transfer under 28 USC 1404, 1406, and 1631 Transferring a case under 1404 gives the federal courts the ability to move cases within the system without the necessity for dismissal

and refilling, which would be necessary under the doctrine of forum non conveniens 1406 allows transfer from a district where the venue is improper. It also allows dismissal. 1631 allows transfer to another court when the original court lacks jurisdiction. The transferred action relates back to the original date of filing however. 1407 applies to the pre-trial motions and actions, and it halts once the trial begins. This deals with consolidating claims and suits for efficiency there is no reason for multiple courts to decide the same motions and actions for the same case.

Piper Aircraft v. Reyno --Facts A small commercial plane crashed in Scotland killing its five passengers and the pilot. The decedents and heirs are all Scottish. There were no eyewitnesses. The aircraft was manufactured in PA by (P) Piper. The propellers were manufactured by (P) Hartzell in OH. The aircraft was own and operated by UK companies. A British report indicated that pilot error may have contributed to the crash. The pilot only had his license for three months prior. A CA probate court appointed (D) Reyno as administratrix of the estates of the passengers. She was legal secretary of their survivors attorney. --Procedural History (D) filed action in CA state court; (Ps) both removed to Federal District Court in CA because of diversity of citizenship. (P-Piper) sought transfer to Middle District of PA under 1404 because that is where he does business. (P-Hartzell) motioned for dismissal for lack of personal jurisdiction OR transfer for the same reason as Piper. o 28 USC 1404(a) transfer of venue. For the convenience of parties an witnesses, in the interest of justice, a DC may transfer an civil action to any other district or division where it might have been brought

Court transferred the case. Then both (D)s filed motion to dismiss on grounds of Forum Non Conveniens. That motion was granted, so (P) appealed. PA District Court granted the dismissal stating that the chosen forum would force oppression against defendant and would be an inappropriate forum because of courts legal problems. (D) appealed. CoA reversed because dismissal based on Forum Non Conveniens is never appropriate where law in alternative forum is unfriendly to plaintiff. US Supreme Court now reviews --Issue = Can a plaintiff defeat a motion to dismiss on ground of forum non conveniens by showing that the substantive law that would be applied in the alternative forum is less favorable to him than that of the chosen forum; and Is it unreasonable to dismiss a case based on fewer evidentiary problems that would be posed if the trial were held in a different forum, if that other forum would not be as favorable to the plaintiff? --(D-Reyno)s argument American citizens have an interest in ensuring that US manufacturers are deterred from producing defective products & additional deterrence might be obtained by US trial where they could be sued on the basis of both negligence and strict liability --(P-Piper & Hartzell)s argument The oppressiveness imposed against (Ds) by forcing them to defend a case in US courts when all the evidence and witnesses are located in Scotland is contrary to established law --Holding = NO, CoAs judgement is reversed back to DCs original ruling. --Rules & Reasoning: When an alternative forum has jurisdiction to hear a case and when trial in the chosen forum would establish oppressiveness and vexation to a defendant out of proportion to the plaintiffs convenience, OR when the chosen forum is inappropriate because of considerations affecting the courts own administrative and legal concerns, the court may in the exercise of sound discretion dismiss the case by applying the list of private and public interest factors. In a motion to dismiss for forum non conveniens, a court should consider both private and public interest factors. Private factors include the relative ease of access to sources of proof, availability of a required process for the attendance of unwilling witnesses, the cost of attendance of witnesses, the

possibility of viewing the scene if appropriate to the action, and other practical matters related to making the trial easy, expeditious, and inexpensive. Public factors include administrative difficulties of the courts, interest in having local controversies decided at home, the interest of having the trial in a forum that is familiar with the law governing the action, the avoidance of unnecessary problems in conflict of laws or the application of foreign law, and the unfairness of burdening citizens in an unrelated forum with jury duty. The court held that private factors favored Scotland because the wreckage of the plane and witnesses were there. The court also held that public factors favored Scotland because Scotland had a greater interesting in hearing a case that concerned Scottish citizens. The court also held that the fact that Scotland might have been less favorable to Reyno based on its lack of strict liability for torts did not provide a reason to dismiss the defendants motion. o Also the interest to hold American companies liable for its actions and products is far less here than the amount of resources and time it would take to try the case in the US

--Policy: Courts will honor a plaintiffs chosen forum normally, but for foreign plaintiffs because their choice deserves less consideration. Plaintiffs are now free to re-file in any other jurisdiction, but Scotland is the clear choice. However, statute of limitations does affect a case like this so they only have a certain amount of time. --Why would someone want to litigate in a US jurisdiction over a foreign jurisdiction? More familiar with laws of jurisdiction Laws of jurisdiction would be more favorable to plaintiff To get a fair trial US system of litigation is very unique compared to other places ad most foreigners prefer it More liberal discovery rules, jury trials are available, etc.

Notes & Problems 1. 2.

3. Reyno now has two basic options either drop the lawsuit completely or refile it in Scotland. But what about the statue of limitations? When the defendant moves to dismissal based on an inconvenient forum, they normally must agree in advance to waive the statute of limitations defense in the alternative forum. This also applies to personal jurisdiction when a defendant moves for transfer of jurisdiction or venue, the court will require the defendant to agree to waive jurisdiction or venue defenses in the new forum. Defendants cannot simply move for dismissal leaving the plaintiff without any means for relief in these situations. 4. 5. A court more than likely will not have to decide if it actually has jurisdiction to hear the claim when deciding to grant a motion for transfer or forum non conveniens. 6. B) Some US courts may refuse to dismiss a case based on the fact that litigating the case in a foreign court system produces no viable choice for venue. Most courts will not dismiss a case if there is no other option to litigate the case. 7. A) Guidu v. Inter-Continental Hotels Corp. The trial court dismissed the case stating that Egypt would be a better forum to litigate the case because an Egyptian court would be more familiar with Egyptian laws, Egypt would properly handle the case based on its commitment to tourism, and there was already litigation there from other victims families. However, the CoA reversed this stating that the burden on plaintiffs to bring their suit in Egypt far outweighed the burden on the defendants US was better forum based on the plaintiffs suit. B) Gonzales v. Chrysler Corp. Even though Mexico is not a viable venue for this case because of the cap award on the loss of child, this case was dismissed in US. There is no real remedy here for the plaintiff, but the court still dismisses because it says that all other factors do not apply here for case to be tried in US. The court is setting up public policy here stating that the economic viability to bring a suit in an alternative forum is not a factor they can take into consideration because then there would be no real place to stop when it comes to the $$$. --Ferrens case is it ethical to follow the plaintiffs actions?

Strategic lawyering to get an advantage. There was accident in PN, and case was filed in PN against defendant for contract. Another case was attempted to be filed based on tort action, but statute of limitations had run out. They go searching for another court where they can get jurisdiction over defendant & where the statute of limitations on tort action has not run out yet. They find MS where they can file the tort action. They file the tort action and then file motion to transfer the tort case to PN according to all public and private interest factors. Unreasonable burden on (P), (D) is already defending in PN, (P)s hospital records are in PN, etc. After transfer, PN court has no choice in not allowing the transfer because they are bound by a previous case decision to follow the laws of MS statute on tort action comes from MS law

10/12/11 pgs. 172-184 Notes & Problems 1. 2. 3. There are some key differences between 1404 and the doctrine of forum non conveniens: 1404 only applies to federal courts. State courts can dismiss a case based on the doctrine of forum non conveniens or their own statutes that resemble 1404. However, state courts lack the power to transfer a case to another state. Forum non conveniens can only be used by defendants. Plaintiffs can seek transfer under 1404. A district judge has more discretion under 1404 than the doctrine of forum non conveniens. 4. 5. Chapter 3: Subject Matter Jurisdiction A. The Idea & Structure of Subject Matter Jurisdiction

--When looking at personal jurisdiction (first jurisdictional boundary), we are looking at a courts power to give a judgment that is binding on the defendant Here is a second jurisdictional boundary placed on courts subject matter jurisdiction, which deals with the powers of the state and federal courts Litigants, lawyers, and judges need to know which kinds of cases belong in which courts because both state and federal governments have their own court systems o Federal courts share most of their jurisdiction with state courts according to statutes concurrent jurisdiction o Concurrent jurisdiction means that a case can be filed in either a state court or a federal court (depending on statutes & Constitution) Article III, 2 limits federal courts jurisdiction to a list. This implies that a case not listed in this section may not be heard in federal court (can only be heard in state court) o The judicial power shall extend to all cases arising under this constitution, the law of the US, and treaties made. o Federal courts are exclusive the only way a case can be filed in federal court is if it is written in a statute Rule 8(a) requires every federal complaint to begin with a short and plain statement of the grounds for the courts jurisdiction 28 USC 1331 grants federal district courts jurisdiction over cases that arise under federal law; however, they do not have exclusive jurisdiction over such cases (can also be brought in state court) o --Arises under per 1331: if a well-pleaded complaint establishes either that 1) federal law creates the cause of action OR 2) that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law o The district courts shall have original jurisdiction of all civil actions arising under the US Constitution, law, or treaties o Explanation: District courts have original jurisdiction of all civil actions, but its not as broad as the jurisdiction given under Article III, 2 of Constitution ^^^^

However, federal jurisdiction can also be excusive. Some areas here are admiralty, bankruptcy, and anti-trusts This type of jurisdiction matters in several different ways: o Tactical federal courts may have shorter waiting times until trial over their state counterparts o Strategic the defendant (or plaintiff) can get more sympathy from a federal court or a state court, depending on the issue o Crafty the opposing lawyer may not fair well with the more formal and faster pace of federal litigation Article III, 1 gives federal judges lifetime tenure this means that they are protected from political pressure because they dont have to worry about re-elections o Example: a litigant with a legally strong but unpopular claim or defense might prefer federal court for this reason Unlike personal jurisdiction, there can be no waive of subject matter jurisdiction. Even if both parties decide on where to file the suit, neither party can waive subject matter jurisdiction --28 USC 1332(c)(2) deals with the legal representative of the

estate or decedent and citizenship. o The legal representative of a decedent, infant, or incompetent will be the citizen of the same state as the decedent, infant, or incompetent. B. Federal Question Jurisdiction In the past, unless covered by one of the specific and generally narrowly drawn statutes, a claim based on the Constitution or a federal statute could not be brought in federal court NOW, there is the federal question statute key provision is that district courts can have jurisdiction over cases arising under the Constitution, federal statutes, or federal treaties Definition: the exercise of federal court power over claims arising under the US Constitution, an act of Congress, or a treaty --Hypo: person from Minnesota going to Denver. She injures someone from Colorado in Denver, so where can a suit be filed? Minnesota Person is domiciled in Minnesota so definitely general personal jurisdiction there.

Colorado the accident took place there so definitely specific personal jurisdiction there Proceeding under diversity, Federal Court may also be an option because both people are from different states. Proceeding under Federal Question, Federal Court may also be an option as long as there is a violation of federal statute? Personal Jurisdiction Due Process clause in the 14
th

Doctrine Constitutional Source Statutory Source

Federal Subject Matter Jurisdiction Article III Federal jurisdictional statutes 28 USC 1331, 1332, etc. Limits power of federal courts to certain kinds of cases those involving federal claims, diverse parties, etc.

Amendment

State and federal long arm statutes Rule 4(k)(1)(A) Limits the power of state and federal courts in any given state over cases involving particular defendants

Effect

Pg. 177 diagram

**A case that began in state court and has been ligated all the way through the state court can make its way to the US Supreme Court if there is a violation of the US Constitution**

Person appealed will file a writ of certiorari, which US Supreme Court will either grant or deny

Louisville & Nashville Railroad v. Mottley --Facts (D)s Mottleys were injured in a railroad accident and accepted settlement from (P) railroad that gave them lifetime train passes. A few decades later, Congress made passes illegal because the passes were often being used as bribes for political officials. (D)s want to claim their lifetime passes still, but (P) revokes lifetime passes based on the Congressional Act (D)s claim that (1) new rule does not prevent free passes under these specific circumstances (2) even if the law does prevent the passes, the Fifth Amendment does not allow taking of property without the due process of law --Procedural History (D)s sue for breach of contract in Federal district court because they assumed that (D)s defense would be the new federal law. (P) demurred, but Federal district court overruled it. Federal district court then ruled in favor of (D)s, granting them their recovery. o Demurrer the facts may be true, but there is no real cause of action (P) appeals to Supreme Court to invalidate the passes. --Issue = is there federal subject matter jurisdiction over a case whose cause of action does not arise out of a federal law or statute? --Holding & Decision = Federal District Courts judgment is reversed and remitted to the circuit court with instructions to dismiss because federal courts lack jurisdiction in this matter SC states that the lower federal court that heard and ruled on this case didnt have jurisdiction under 1331. Therefore, SC cant even look at the issues in this case because the lower federal court was erroneous in making a ruling. Must go to state court --Rules & Reasoning The action for breach of contract falls under State law, but even past that, the court only looks at the plaintiffs allegations in their complaint originally filed.

A suit arises under the US Constitution and US laws only when the plaintiffs statement of his own cause of action shows that it is based upon those laws or the Constitution. The plaintiff cannot allege an anticipated federal law defense to his cause of action and gain subject matter jurisdiction. o This case falls under 1331 because of federal district court original jurisdiction --Significance There are two ways to establish federal court SMJ: o One is through diversity of jurisdiction. o The other is federal question jurisdiction, i.e. the complaint must allege some violation of the US Constitution or some federal statute. Although the court found that (D)s allegations show that in the course of litigation a question under the US Constitution would arise, this did not satisfy the courts requirement for federal question jurisdiction that (P)s original cause of action arise under the Constitution This case could be appealed to the US Supreme Court after it was

litigated through the entire state court system because federal jurisdiction would fall under US Const. art. III 2 but the US Supreme Court can deny writ of certiorari **Courts can raise its own SMJ over a case, just like the court did here^^** Page 179 Scenarios: Is there Federal Questions Jurisdiction? Worker v. Employer o First, look at the well-pleaded complaint plaintiff states that the employer has violated the federal law [basis of the lawsuit]. It doesnt matter what the employers defense is. o Since worker has stated a federal question in his complaint, this case does fall under 1331. o Federal Question = YUP Citizen v. Newspaper o First, look at the well-pleaded complaint plaintiff brings a libel claim, which falls under state law [basis of lawsuit].

o Since the worker has only stated a state law violation, this case does not fall under 1331 o Federal Question = NOPE They would only be able to see federal appellate court after it has already been litigated once defense brings up the Constitution amendment no original jurisdiction for federal district courts Notes & Problems 1. 2. 3. 4. The case above illustrates the rigid but widely used approach to decide subject matter jurisdiction the plaintiffs well-pleaded complaint. 5. The phrase arising under is in both Article III and 1331. Most courts state that Article III is much broader than 1331. A) Since the constitutional meaning of arising under is broader, the US Supreme court would have the subject matter jurisdiction to hear the case if it was appealed. The district court did not have jurisdiction over the case because it operates under 1331, which is more narrow. 6. 7. A) No federal jurisdiction at first glance, until you look at the federal agency that played a role in the reason for the suit. Smith is different from previous case because Mottleys could have pursued their claim against the defendants without ever mentioning federal law. Here, Smith could only have brought his action by bringing up federal law he would have had no cause of action. B) Grable = this claim seems like a state claim, but in order for him to bring about his claim, he MUST bring up the federal procedure behind the defendants actions. Plaintiff can only bring about his suit by bringing up both state and federal law, thus there is federal question; Empire = this is typically a state claim because it deals with insurance and subrogation. Even though there were federal employees and federal statutes, the court reasoned that the case was based on state subrogation law no federal claims. Health insurer can seek its suit under state law.

8. Declaratory Judgment a binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement. 9. If you want a case to keep its federal jurisdiction, then you must make sure that your judgment or settlement in a consent decree. A consent decree/ consent judgment is the only way for someone to bring an action for defendants violation of their settlement/ judgment. Without the consent decree, there is only a normal breach of contract which falls under state law 10/13/11 pgs. 186-201 Note: Challenging Federal Subject Matter Jurisdiction If you believe there is no basis for federal subject matter jurisdiction, then you could move for dismissal under Rule 12(b)(1), asserting the absence of federal subject matter jurisdiction [for dismissal based on diversity] Rule 12(b)(1) motions for lack of subject matter jurisdiction based on arising under generally take one of two forms: o (1) a facial attack on the sufficiency of the complaints allegations as to subject matter jurisdiction attack the claim stating there is no federal claim so no jurisdiction; or o (2) a challenge to the actual facts upon which subject matter jurisdiction is based theres no jurisdiction because theres no claim arising under federal law. The other option is Rule 12(b)(6) motion to dismiss the substantive claim, which means if a court grants this then the federal law raised does not apply to the facts of the case If the case is dismissed under Rule 12(b)(1), then the plaintiff can STILL bring their action in state court o If the court dismisses under this rule, then the plaintiff cannot re-file their action anywhere because of claim preclusion??? Notes & Problems on How to Respond to Federal SMJ 1. 2. 3.

4. --Hypo: In Mottleys v. RR, there is no federal question. But suppose Mottleys are from Kentucky, and RR has its principal place in NY and is incorporated in Delaware. Is there SMJ? YES because of diversity of citizenship under federal law Even though The US Constitution does not give a specific value of the controversy, 28 USC 1332 narrows the jurisdiction given in the Constitution [must be more than $75,000] The provisions of 1332 have been interpreted very narrowly and very strictly because there have been talks about getting rid of diversity jurisdiction C. Diversity Jurisdiction [diversity of citizenship] Federal diversity of citizenship jurisdiction is made possible by article III of the US Constitution Diversity jurisdiction a federal courts exercise of authority over a case involving parties who are citizens of different states and an amount in controversy greater than the statutory minimum [ 28 USC 1332] Diversity of citizenship a basis for federal court jurisdiction that exists when 1) a case is between citizens of different states or a citizen of a state and an alien & 2) the matter in controversy exceeds specific value o A corporation is considered a citizen of both the state of incorporation and the state of its principal place of business o An unincorporated association, such as a partnership, is considered a citizen of each state where at least one of its members is a citizen o Complete diversity must exist for federal subject matter jurisdiction this means that all the parties on both sides of the case must be from different states all plaintiffs must have different citizenships from all defendants US Supreme Court has stated that diversity jurisdiction was created by the legislature to provide a neutral forum for US citizens, foreign citizens, US states, and foreign states

Recently, Congress has suggested that there is a broader function for diversity jurisdiction some cases have national scope and national implications, so those cases should be heard in a national court, even if the governing law is state law o Pay attention to how uncertainty about diversity plays a role

Redner v. Sanders --Facts: (P) says he is a US citizen residing in France. (D)s are from NY. (P) files his suit in the Central District of NY asserting diversity jurisdiction because he is a resident of a foreign state while (D)s are residents of NY. o He seems to be applying 28 USC 1332 (a)(2) as a basis for jurisdiction, alleging he is a resident of France. o (P) also talks about his connection with CA, mentioning his various contacts with that state. (P) is trying to lay basis for jurisdiction under 1332(a)(1). (D)s file a motion to dismiss the case under Rule 12(b)(1) for lack of subject matter jurisdiction --Issue = does subject matter jurisdiction hold citizenship and residence of a state to mean the same thing? --Holding = (P)s case is dismissed for lack of subject matter jurisdiction. He can re-file this suit again if he gathers more evidence. --Reasoning To invoke 28 USC 1332 (a)(2), (P) must be a citizen of the foreign state, not just a resident. (P) only lives in France, he is not a citizen. So, this is not applicable. o His affidavit is completely lacking in details about his life in France family, residence, ties to France, etc. To invoke 28 USC 1332 (a)(1), he must be a citizen of a US state which means he must be domiciled in that state and he must have intent to remain there. (P)s evidence of domicile is not enough to demonstrate that he is a citizen of Cali. Also, he never asserts that diversity jurisdiction exists because of this purported CA domicile, and he does not make a request to amend the complaint to assert such a claim.

**He can make a move to Cali, making him a citizen OR become a French citizen and re-file his lawsuit this may seem like playing games, but he can do this because the court will only look at diversity starting when he filed his suit. o What if (D)s were incorporated in NY and principle-business based in Cali? NO because there isnt complete diversity there is a match because the courts look at both parts of a corporations contacts with the states.

Notes & Problems 1. 2. 3. A) The time for measuring citizenship for diversity purposes is as of the date on which the complaint is filed in federal court. This holds true even if the plaintiff moves to another state for the sole purpose of establishing diversity of citizenship. 4. A) Yes there would have been diversity because he would have been considered a foreign alien. B) yes? 5. 6. 7. 8. Is there diversity? A) No because neither (P) nor (D) are citizens of US. B) YES because there is a US citizen suing two foreign parties that are different from each other. C) YES because parties on both sides are from US that are different states, and there are different foreign parties too. D) NO because this suit does not fit under any of the lettered sections in 1332 they must fit very narrowly and strictly according to the courts. 9. A) For a partnership of business, we need to look at where the partners are citizens themselves. A few of these partners of the TX corporation were actually Mexican citizens, thus destroying diversity. No diversity means no federal jurisdiction. 10. 28 USC 1332(c) deals with determining the citizenship of a corporation. Corporations have dual citizenship where it is incorporated AND where it has its chief place of business. The chief of the business place is a question of fact emphasis of the corporate nerve center where the executive and

administrative functions are controlled; concentration on the everyday business activities of the company [called the muscle]. 11. 12. 1359 deprives district courts of jurisdiction in cases where a party has been improperly or collusively joined to invoke diversity jurisdiction. 13. A citizen of DC, Puerto Rico, Guam, and any other American territory is a citizen of the state for diversity purposes. 14. Hertz decision and pgs. 421-426 supp. (P)s were just trying to argue that they have a really big presence in the state of Cali. This court really attacks what the meaning of a principal place of business of a corporation is. --Holding: The Court must determine where the corporations high level officers direct, control and coordinate the corporations activities (i.e., the nerve Center test). --Rationale: The Court determined that a corporations principal place of business is the place where the corporations high-ranking offices direct, control and coordinate the corporations activities The Court stated that this place is generally the corporations headquarters. The Court reasoned that the word place as used in 1332 is singular and therefore implies a single place where the principal business is occurring. In addition, the text implies that courts should look for a place within a state, rather than activities taking place throughout the state. Finally, the Court reviewed the legislative history and determined that the legislature wanted the adopt the simple and straightforward test for determining the principal place of business and not a complicated one such as a test where the principal place of business is determined by the state in which the corporation does most business The biggest point here was that a company can have a huge factory in one state but its principal place of business is actually somewhere else nerve center test is the most important test!!!

Saadeh v. Farouki --Facts: Farouki (D) owes Saadeh (P) money; by the time the suit was filed, (D) had achieved permanent resident immigration status in US by residing in Maryland. --Procedural History (P) is a Greek citizen and he invoked diversity jurisdiction. While they were going through litigation, (D) became a citizen of the US. District Court rendered a judgment for (P), and (D) appealed on the merits of the case. Then the CoA asked about jurisdiction. The parties never brought up jurisdiction at all, the court decided to look at the issue of jurisdiction --Issue = Is there subject matter jurisdiction a case involving two foreign parties as plaintiff and defendant? --Holding = CoA dismissed the case for lack of SMJ. --Significance: According to the last sentence of 1332(a), it seems that (D) would be considered a citizen of MD because he is a permanent resident and he is domiciled there. Thus, when taking this literally, it seems that there is diversity jurisdiction under 1332 (a)(2). However, the legislative intent was to eliminate diversity jurisdiction cases between a citizen and an alien living in the same state. Furthermore, if read literally, it seems that there will be an unconstitutional resultit would create federal diversity in a lawsuit brought by one alien against another alien. The reason the court did not consider (D)s recent citizen of the US status is because they have to look at his citizenship at the time the suit was filed.

Diversity Hypo: a US citizen of Maryland gets into a car accident with a foreign alien who is domiciled in Maryland. Alien is a citizen of Jordan, but he has been living in Maryland for he last 25 years. Diversity jurisdiction? NOPE because the courts would look at these two parties as residents of the same state. The judgment here shows a very different interpretation of the same provision applied to the above Saadeh case. The point of this

provision though is to DEFEAT FEDERAL jurisdiction they do not want to add more cases. Our US Constitution article III, 2 would not allow a court to hear a US federal suit between 2 foreign citizens.

Notes & Problems 1. 2. 3. SPLIT IN JURISDICTION!! 7th circuit takes the position that for diversity purposes a resident alien is like a corporation with dual citizenship a citizen of both her state of residence and of the foreign nation where she still holds citizenship. 3rd circuit takes the position that the permanent alien is a citizen of the state where he resides not of his native land. 4. 5. 6. 10/17/11 pgs. 201-213 --Note: $$ Amount in Controversy Besides diversity 1332 requires the amount in controversy to exceed $75,000. This is put in our laws by Congress. The court will determine if the amount in controversy is correct to allow the case to move forward based on the well-pleaded complaint. How do courts deal with cases where there is no actual cost in controversy, but a specific performance? Courts will look at: o Cost to the plaintiff; o Cost to the defendant to specifically perform; and/ or o Cost or value to the party seeking federal jurisdiction. This will come up when the defendant questions whether the plaintiffs claim is actually worth $75,000 of damages The will also come up when the plaintiff files case in state court, and then the defendant has removed the case to federal court defendant alleges the damages are more than $75,000

Counterclaims under Rule 13 are different if the RR had a counterclaim of $10,000 against the Mottleys [who have $100,000]. Can RR raise the claim? o They can if the counterclaim is compulsory it has to be raised or RR loses it, and it arises out of the same action that the plaintiffs raise. o They cant if the counterclaim is permissive

--Hypo Go back to the Mottley case: Mr. Mottley and Mrs. Mottley each have $40,000 in damages for their claims, so they want to add their claims together to exceed the $75,000 is this legal? NOPE because neither have the amount She can aggregate her claims together in order to exceed the $75,000 amount is this legal? YUP If she has $75,000 in her claim and he has $40,000, so he wants to join his suit to hers is this legal? YUP because shes in

Examples of Congress requiring less for Diversity: Federal Interpleader Act, 28 USC 1335 Class Action Fairness Act of 2005, 28 USC 1332 (d) 28 USC 1369

D. Supplemental Jurisdiction This doctrine broadens and expands federal jurisdiction this statute allows jurisdiction over a claim that is part of the same case or controversy as another claim over which the court has original jurisdiction [A is the widest part of the statute, and B & C bring it back a little] o By default, courts have supplemental jurisdiction over "all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy" [ 1367(a)]. o This means a federal court hearing a federal claim can also hear substantially related state law claims, thereby encouraging efficiency by having one trial at the federal level rather than one trial in federal court & another in state court.

o However, if the case is brought as a diversity action, there generally is no supplemental jurisdiction if such claims would destroy complete diversity. 1367(b) states if jurisdiction is based on diversity, no supplemental jurisdiction over claims by plaintiffs against persons made parties under FRCP rule 1 (third party) 19, & 20 (joinder of a party) or 24 (intervention).. when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. Under 28 USC 1367(c), courts are also free to decline to exercise supplemental jurisdiction in specified or exceptional circumstances. 1367(c) provides four instances where a court can decline to exercise supplemental jurisdiction: o The claim raises a novel or complex issue of State law; o The claim substantially predominates over the claim or claims over which the District Court has original jurisdiction; o The District Court has dismissed all claims over which its has original jurisdiction; OR o In exceptional circumstances, there are other compelling reasons for declining jurisdiction

Notes & Problems 1. 2. A) There is federal question jurisdiction because of the violation of federal civil rights, which gives subject matter jurisdiction. There is supplemental jurisdiction because the state law claim has the same common core of relevant facts to the federal suit. B) No supplemental jurisdiction because the state law claim does not deal with the controversy in the suit its a completely different set of facts and has nothing to do with the federal statute violation. C) The last sentence of 1367(a) allows the joining of the additional party, and (b) doesnt apply here because there is no diversity jurisdiction here. There is supplemental jurisdiction because the state tort law is related to the violation of the federal statute violation. D) This falls directly under 1367(b), and there is no supplemental jurisdiction here because of diversity issues. The additional party is from the same state as (P), which destroys diversity and this violates another federal statute. E)

Supplemental jurisdiction is not needed here because there is diversity & amount in controversy [1331] and federal question claims [1332]. Supplemental is only needed when you cant get any federal jurisdiction through the other federal statutes. 3. Supplemental jurisdiction basically means that the relationship between the claims permits the conclusion that the entire action before the court comprises one constitutional case. United Mine Workers v. Gibbs 4. In re Ameriquest Mortgage Co. Lending Practices Litigation --Facts: (P) is a home buyer who is lending money from (D). (D) overestimates her home value in order to increase her loan amount and make more money. (P) sues under the federal Truth in Lending Act (TILA). (P) also sues for improper disclosure and conspiracy (both state laws) o Count I: federal violation of TILA - goes up under 1331 (federal cause of action) o Counts II and III: state fraud claims can they go up under supplemental jurisdiction? --Procedural History: (P) sues (D) in federal court for all her claims on the basis of supplemental jurisdiction (1367). Defendants move to dismiss state claims via Rule 12(b)(1). --Issue: Can a plaintiffs state claims be linked to federal claims and get to federal court under supplemental jurisdiction? --Holding: (D)s motion to dismiss state claims (counts II and III) is denied. (P)s claims can be linked because they combine to tell one story: (P) didnt know her right to cancel at the outset, Her home value was overstated and so she has paid too much on the loan and has not been allowed to refinance. Now (P) wants to void her mortgage based on that lack of disclosure. --Reasoning: Court decides to exercise their discretion in favor of retaining jurisdiction over all the claims.

In order to qualify, there must be common operative facts meaning you would ordinarily try all the different claims in one case. Here, the state claims are integrally connected to the federal claims. The court couldnt make a decision on one issue, without affecting the decision on the other issue. To determine whether the federal and state law claims are connected by common and operative facts, the facts necessary to prove the federal claim are compared with those necessary to the success of the state claim. In this case, Skanes (P) explicitly connected her federal and state claims. She did not fully know of her right to cancel her mortgage, she paid too much during the life of the loan because the mortgage was overstated, and she has not been able to refinance the mortgage due to the over-statement. The connection is operative, in that if the court were to dismiss the state law claims, it may not be able to grant the rescission of the mortgage under TILA. Because the court cannot conclude that the resolution of one of her state claims will have no effect on the resolution on her federal claims, supplemental jurisdiction is proper

Szendrey-Ramos v. First Bancorp. --Facts (P) Ramos is employed as general counsel for (D) Bancorp. (P) is told about some company ethics violations from an external source; thus, (P) investigates and divulges her findings to both external and internal sources. (P) is subsequently fired. --Procedural History (P) sues (D) in federal court for illegally firing her under US federal law Title VII; she also states a number of violations of Puerto Rican state law: wrongful discharge, violations of Puerto Rican constitution, defamation, etc. (D) motions to dismiss all state and federal claims. --Issue: Does supplemental jurisdiction allow (P) to bring her state claims into federal court? --Holding: While the court does have supplemental jurisdiction over these claims, this court uses its discretion not to exercise jurisdiction.

State law claims are dismissed. Federal Title VII claim can move forward. --Reasoning: For 1367(a), look at the facts of the suit and see if they are related. The court does have supplemental jurisdiction over the claims brought by (P), but there are some issues. o (1) State law claims raise novel and complex issues of state law; and (2) State law claims substantially predominate over the federal claim. In regards to #1, the court does not want to touch interpreting what Puerto Rico law says about ethics for lawyers o Puerto Rican state law on some of the central matters is substantially different than American law with regard to lawyer conduct. In regards to #2, state claims are far greater in number & to prove them, case goes way outside the scope of what is needed to prove the federal claim. o If state law claims raise novel issues of state law or substantially predominate over the federal claim, the state claims cannot come up under supplemental jurisdiction see 1367(c). Notes & Problems 1. 2. Even if the federal and state claims in an action arise out of the same factual situation, litigating these claims together may not sere judicial economy or trial convenience. Federal and state laws have different focuses & they have evolved at different times within different legislative systems In almost every case with supplemental state claims, the courts and counsel are unduly preoccupied with substantive and procedural problems reconciling the two bodies of law and providing a fair and meaningful proceeding. The attempt to reconcile the two distinct bodies of law often dominates and prolongs pretrial, complicates the trial, lengthens the jury instructions, confuses the jury, results in inconsistent

verdicts, and causes post-trial problems with respect to judgment interest and attorney fees. 3. 4. 10/19/11 pgs. 213-221 E. Removal Jurisdictional statutes give plaintiffs an initial choice of state or federal court when federal and state court jurisdiction overlap However, defendants also have the power to challenge the plaintiffs decision to choose state court when the claim could have been brought in federal court Removal is under 28 USC 1441 o (a) If the civil action is brought in state court and the federal court would have original jurisdiction [either under federal question or diversity], then the defendant has the right to move for removal to federal court If there are multiple defendants, then all the defendants must agree together in the filing for removal it doesnt have to signed, but the defendants must all consent to it in court o (b) If the case is removed because of diversity, then that defendant cannot remove it to state court if he is hometowned in that state The procedure for removal is under 1446 o Defendant files a notice for removal. It only needs to be a short and plain statement of the grounds for removal, together with a copy of all process, pleadings and orders o You must file within 30 days after you (as the defendant) receive file; however, you only have one year to remove if its based on diversity of citizenship If its not based on diversity, then there is no 1-year cap The process for challenging removal is under 28 USC 1447. 1447(c) has provisions concerning remand to state courts: o 1) A motion to remand on the basis of any defect other than lack of SMJ has a 30-day limit this applies to problems that

would prevent removal but would not have destroyed federal jurisdiction Motion to remand has a 30 day limit after the filing of the notice for removal. If you dont file this motion in time, then as the plaintiff then you will lose your right and the case will stay where the courts decide jurisdiction lies This 30 day limit is the plaintiffs window to point out lack of jurisdiction and procedural issues made by defendant This motion will give the plaintiff the right to point out any problems with the cases procedure [if defendant filed removal after 30 day limit] the defendants screw-ups can help the plaintiff even if the federal courts have jurisdiction o 2) Requires remand if the district court lacks SMJ this refers to the facts that negate federal SMJ Hypo about removal and remand: Situation of a case where it is removable. (P) wants to move to remand the case because (D) didnt file for removal within the 30 day time limit. However, (P) misses his 30 day window to point out that (D)s procedural error; can he do anything? (P) can file a motion for sanctions OR the court can sanction (D) for missing the window to file for removal. Notes & Problems 1. A) This case cannot be removed because 1st amendment is a defense, and the federal claim must be in the complaint. Defamation is not a federal claim, so there is no federal jurisdiction because plaintiffs complaint does not bring up federal question. B) Yes because the original action could have been brought into federal court based on the federal question. C) Yes because there is diversity and the amount on controversy is satisfied. D) This action could not be brought in NJ court because the defendant is from NJ he couldnt argue bias against him. E) Because the plaintiff brought in the federal claim, the defendant may remove the whole action because of the federal question claim now under 1441(c). F) Even though both (D)s

consented to removal, the case cannot be removed because one of the defendants are from the home state where the suit is filed. 2. A) Notice must say that there is diversity and the amount in controversy fulfills the requirement in the USC. E) Most states do not allow parties to assert the amount of damages in their complaint. If the damages are higher, then send the interrogatory to the plaintiff a question of what specifically makes up that amount and what the elements of the damages are. You will then have the information you need to prove that the amount is higher, which will make the case removable. Courts look at the plaintiffs well-pleaded complaint so will the court make a determination of whether the complaint is generally correct in terms of damages alleged? If a defendant thinks a case is removable but cannot remove it for amount in controversy, what should he do get a statement from plaintiff showing what the damages are and what they believe those damages amount to. However, if you cant get this information, then you cant file a notice for removal if you do, then you will be sanctioned.

IMPORTANT Hypo = (D1) is a small-time player from Georgia and (D2) is the big-time player from South Carolina. (D1) gets served first about the suit in Pennsylvania court. (D1) doesnt pay attention to the claims against him in terms of removal because he doesnt believe it matters. (D2) is served a month later, and he asserts right to removal for the case. There is a split in jurisdiction about this situation: Some courts believe that it deals with the service of the first defendant in this situation, it means that (D2) would not be able to file for removal because the 30 day limit has run from (D1)s service of the suit. o 5th circuit goes with this rule above Other courts believe that it deals with the service of the last served defendant then (D2) would be able to file for removal. They claim that this situation should be the last served defendant because the plaintiff has the duty to serve all the defendants, and all the defendants have their own rights in a case. o 6th, 8th, and 11th circuit agree with this rule above

****Rule 11 will not sanction you for a good-faith argument. So if you are placed in this situation, then you can plead one of these arguments showing that there is a split in jurisdiction**** Caterpillar, Inc. v. Lewis --Facts (D) Lewis, a Kentucky resident, commenced this civil action in Kentucky state court after sustaining personal injuries while operating a bulldozer. Asserting state-law claims, Lewis named as previous (D)s the manufacturer of the bulldozer(P) Caterpillar Inc., a Delaware corporation with its principal place of business in Illinois--and the company that serviced the bulldozer--Whayne Supply Company, a Kentucky corporation with its principal place of business in Kentucky. Liberty Mutual, a MA corporation, intervened later as an additional (P) asserting subrogation claims against both (D)s. Lewis entered into a settlement agreement w/ (D) Whayne, which allowed Whayne to be dismissed as a (D). --Procedural History With 1 day to spare the statutory req. of 1 year, (D) Caterpillar filed a notice of removal to Kentucky Federal DC asserting complete diversity because Whayne exited the case post-settlement. o However, the official documents that dismissed Whayne as a defendant have not be filed, so they are technically still a party to the lawsuit Lewis objected to removal and moved to remand the case to state court stating that Liberty had not settled its subrogation w/ Whanye yet no diversity. Federal District Court denied the motion. 3 years later Liberty and Whayne settled. Jury trial followed with a verdict for Caterpillar. Lewis appealed the judgment stating that removal of the case when diversity was incomplete is a jurisdictional defect = the court lacked SMJ. Adherence to the rules prescribed for removal would have kept the case in state court. CoA vacated the judgment, concluding that because of lack of diversity at the time of removal, the Federal District Court lacked subject-matter jurisdiction.

--Issue = Is a DCs error in failing to remand a case improperly removed fatal to the ensuing adjudication if federal jurisdictional requirements are met at the time judgment is entered? --Holding & Decision = CoA erred in resting its decision on the absence of subject matter jurisdiction. Reversed and remanded --Rule & Reasoning The case was improperly removed because there was no diversity because parties from Kentucky were on both sides, AND the motion for remand was improperly denied BUT there were no lingering jurisdictional issues when the trial took place in Federal Court. o At the time of trial in Federal District Court, there was complete diversity and federal subject matter jurisdiction. The result would have been the same for the case even if the motion to remand had been granted matters of efficiency, economy, and finality outweigh going back through the case all over again because the result would have been the same. --Significance = this case has been very, VERY narrowly and strictly applied and used. Federal Court jurisdiction must hold through the entire time of the case for a court to allow a mistake of procedure go without being fixed. Hypo = (D) is from TN and (P) is from KY, and there is a valid legal amount in controversy for federal court jurisdiction. If there are two non-diverse parties, and (D) moves to TN. Is the case removable? No because there was no diversity at the time of filing. (P) is from KY, (D1) is from KY, and (D2) is from LA. (D1) is dismissed from the suit. Thus (D2) can file for removal as long as he meets the requirement for time to file. --5th circuit if there is a claim for some type of fraud form any of the parties, there must be grievous evidence pointing it out In one case like the above hypo, the dismissal of one party made the case removable. (D)s had made the file for removal well within the time period specified in the time limit. However, the plaintiff held onto the file for removal a few days past the 1 year limit to

keep the defendant from removing the case legally. 5th circuit ruled in favor of (D) and allowed removal Notes & Problems

11/23/2012 4:11:00 PM 10/31/11 pgs. 221-237 Chapter 4: The Erie Problem [definition in Blacks] This chapter explores an entailment of the shared power between state and federal courts to hear case. How does the Constitution ensure that these two court systems respect each others spheres of power? They exercise overlapping jurisdiction and share power several different states may have jurisdiction to hear a case against a particular defendant. o Similarly state courts can hear cases arising under federal law, and federal courts [sitting in diversity] can hear cases that could also be tried in state courts So what law applies to these cases? This opens the broad field of inquiry knows as choice of law or conflicts of law o Erie raises the question that when a federal court sits in diversity jurisdiction, what law does it apply? This problem only applies to diversity cases! o Why would a plaintiff want to fill in federal district court in the defendants hometown state? To gain personal jurisdiction

over defendant, the laws in that state are better for him, he may have pissed people off in his own state court system, the defendants state court system might be more efficient, etc. A. State Courts as Lawmakers in a Federal System Rules of Decision Act, 28 USC 1652 the laws of several states, except where the Constitution or acts of Congress, shall be regarded as rules of decisions in civil actions in the courts of the US, in cases where they apply o So what law is applied then? Substantive enacted law and case law will be applied! o Stare decisis precedent set by the highest court in the state will be used in these federal courts to apply to the case, but the federal courts are not necessarily bound by this doctrine For many federal courts, Swift became a charter of judicial independence a declaration that they could ignore state case law when they heard diversity cases --The Issue in Historical Context

Swift v. Tyson [1841] o Issue = Does the term laws of the several states in the Rules of Decision Act include state common law? o Holding = No, the term laws of the several states in the Rules of Decision Act does not include state common law. o Reasoning = The court held that the laws of the several states in the Act required federal courts to apply state statutory law but not state common law [civilian approach]. The decisions of courts hardly constitute laws; they are at most only evidence of what laws are. The laws of the state are understood to mean the rules and enactments written by the legislative authority, or long established by local customs having the force of law. The court stated that it had long considered that the Act was limited only to positive statutes of states. Under these facts, the common law (or judge made law) of New York would provide a defense to Tyson but the federal courts were not required to apply it by virtue of the Rules of Decision Act.

--Constitutionalizing the Issue Erie Railroad v. Tompkins --Facts Tompkins (P) sustained personal injuries when he was struck by an Erie Railroad Company (D) freight train in Pennsylvania while walking on a footpath adjacent to the tracks. Tompkins was a citizen of Pennsylvania and Erie Railroad Company was incorporated in New York. --Procedural history (D) brought this diversity lawsuit in NY federal district court asserting that he was lawfully on the property as a licensee, and that the accident occurred as a result of Erie Railroads negligence in the operation or maintenance of the train. (P) Erie denied liability and asserted that the rule that had been established in the courts of Pennsylvania should apply.

o Under PN rule, persons using pathways adjacent to railways were deemed trespassers and the railroad would not liable for injuries unless its actions were wanton or willful. o He wanted NY court in hopes that they would apply general common law from all over that constituted ordinary negligence law because it would help him recover damages. Tompkins contended that since no PA statute addressed liability in such cases, the railroads liability should be determined according to the rule established in Swift v. Tyson. Under Federal CML, Tompkins would be regarded as a licensee, so Erie would be liable upon a

showing of ordinary negligence. Jury returned a verdict for Tompkins for $30,000. The CoA affirmed, holding that in regards to questions of general law not covered by state statute, federal courts are free to exercise their judgment as to what the law is. The Supreme Court granted certiorari. --Issue = In diversity actions, except in matters governed by the Constitution or acts of Congress, must federal courts apply state common law in addition to statutory law? --Holding = Reversed and remanded back where state laws will be applied. --Rule & Reasoning (Brandeis) In diversity actions, except in matters governed by the Constitution or Acts of Congress, federal courts must apply state common law in addition to statutory law. Swift is unconstitutional In diversity cases, federal courts must apply state law as declared by the highest state court in addition to state statutory law. There is no federal general common law. o Congress has no power to declare substantive rules of common law applicable in a State and the Constitution does not confer such a power upon the federal courts. In disapproving Swift, the Court does not hold 34 of the Federal Judiciary Act of 1789 unconstitutional. It merely declares that, by applying the doctrine of that case, rights which are reserved by the Constitution to the States have been invaded. Swift is overruled because it was an unconstitutional assumption of powers by the US Courts. Federal courts do not have the power to

create federal common law as this gives federal courts powers not granted in the Constitution. o Congress has no power to declare the substantive rules of common law in state actions. --Significance The Swift decision is flawed because it promotes forum shopping. Citizens of one state could move to another state to create diversity and bring suit in federal court to take advantage of a more favorable choice of law. Such a defect is substantial and provides no benefit. However, now there is a hazy line between the procedure and the actually substance of a case. Examples: choice of law [p], statute of limitations [p], enforcement of arbitration agreements [p], jury or judge [p], method of service of process [s/p], enforcement of forum selection clause [s/p], reduction of excessive damage award [s], claim preclusion [p]. o Courts now have to grapple with the examples above to decide how to judge the case in regards to the Erie problem

Notes & Problems 3. People try to defend Erie decision with the 5th and 10th Amendments 5th prevents discrimination results because there should be no reason that results would change based on if someone was injured by someone diverse. 10th No Clause gives the federal courts or congress the power to create state laws [especially to be applied in lawsuits] 4. Klaxon v. Stentor Elec. Mfg. Co. = Note on Erie & the Persistence of Federal Common Law Erie holds only that general federal common law may not displace that of the states in areas in which the Constitution grants lawmaking power to the states The Constitution thus grants potential lawmaking power to the federal courts in many areas because it grants lawmaking power to the federal government, and the courts are part of that body

Federal statutes may also provide an opportunity for federal common law to fill gaps in the statutory scheme The result in Erie was also used to prevent parties from vertical forum shopping going from state court to federal court. However by curing this problem, they have only shifted to parties horizontal forum shopping o Parties can now move from state federal court to another state federal court in order to get certain laws applied to their case that will give them more benefits.

B. The Limits of State Power in Federal Courts Erie established that federal courts sitting in diversity action were bound to replicate state practice in some circumstances Although Erie did not say so, its setting suggested at the very least federal courts sitting in diversity should observe state substantive law, whether made by legislatures or by judges The Supreme Court has attempted to address the different questions and principles that have risen from Erie: o Erie requires deference to state courts as lawmaking bodies; o Federal courts are an independent judicial system --Interpreting the Constitutional Command of Erie Guaranty Trust Co. v. York Outcome Determinative Test --Facts: There was a breach of trust by Guarantee. --Procedural Posture: (P) brought action governed by NY substantive law in federal court based on diversity of citizenship. (D) moved for summary judgment on the grounds that the state statute of limitations had run. o (P) argues that the court should apply equity, which means the court would look at whether the case was brought in a reasonable time instead of the rigid statute of limitations o This is a procedural issue, and federal laws should be applied. District court granted summary judgment stating that it was prescribed by state statutes. CoA reversed holding that the statute of limitations did not apply in this federal court case in the presence of a federal tolling doctrine.

--Issue: Under what circumstances are federal courts bound by state law in a diversity action under a procedural issue? --Holding: Where it would significantly affect the result of litigation, a federal court should use the state law. --Reasoning: Erie did not merely overrule Swift with regard to substantive state law. It overruled the judicial process of federal courts disregarding state law where it would lead to different results in the state vs. federal court in a diversity action. In these cases, the federal court is acting as just another state court. Thus, it cannot afford recovery for a state-given right if the state itself would not afford recovery. The difference between substance and procedure is not the dividing line for when to apply state law. Rather, the question is whether the state law merely concerns the manner and the means by which a right to recover is enforced or whether it would substantially affect the result. Here, the state bars the action. Thus, the federal court should bar the action for the same reason.

--Significance = Outcome Determinative Test There is a difference between the manner and means of a lawsuit compared to the substantive issues of a lawsuit. If not following state law would change the outcome of the case, then the state law should be followed in the case. Weakness This test can be used to argue any facet of a lawsuit, so it really doesnt help think about the size of a piece of paper to file a lawsuit & the statute of limitations. o Basically, most courts ended up holding that state law would apply to all cases where this question came up. Notes & Problems For each case coming up, follow these guidelines: State the facts When looking at the issue, decide if we are applying federal rule, federal statute, or federal practice.

When looking at the result, see if there is difference in results if the case would have been tried in a state court or a federal court. What did the court hold? What did the court reason and what test did it apply?

11/07/11 pgs. 237-255 & Supp. Reading for Erie chapter! Byrd v. Blue Ridge Rural Electric Cooperative --Facts Byrd (P) was injured in South Carolina while connecting power lines in the course of his employment for a subcontractor of Blue Ridge Rural Electric Cooperative, Inc. (P) brought a diversity action against (D) for personal injuries. Under South Carolina law, if (D) were (P)s statutory employer, (P)s award would be limited to workmens compensation and he would not be entitled to sue (D) for negligence. (D) raised an affirmative defense based on South Carolina law that it was (P)s statutory employer and that (P) was therefore limited to workmens compensation. --Issue = Under the Erie doctrine, must state law be applied in determinations of rights for trial regardless of conflict with US federal law and the Constitution? We are applying federal practice by federal policy to use juries. State law says judge will decide, federal law says jury will decide. --Holding = Reversed and remanded. --Reasoning There was a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts. The Erie doctrine does not mandate that state law be applied in determinations of procedure regardless of conflict with federal law and the Constitution. The Court held that South Carolinas determination that immunity was a question of law to be decided by a judge was merely a determination of the form and mode of enforcing immunity. It did not involve any essential relationship or determination of rights created by state law. The court held that the Erie doctrine can still

reach form and mode determinations if there are no affirmative countervailing considerations. The right to a jury trial in federal court is a fundamental and essential right provided for in the Seventh Amendment and that may not be changed by any contrary state law or requirements --Balance Test balances state interests against federal interests How bound up with the right is the state law? Is the state practice bound up with the substantive rights and obligations of the party? o If so, then state law applies. If not, go on to next question. Is the difference outcome determinative? o If yes, then go on to the next question. How important is the federal interest? This must be compared to state interest.

Notes and Problems 2. Deciding to use a jury instead of a judge in Byrd might change the outcome of the case. The court states that the federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction. The federal system is still called to use its own rules and laws to govern its function in our judicial system. II. De-Constitutionalizing Erie Hanna v. Plumer --Facts & Procedural History Hanna was involved in an automobile accident in South Carolina with Osgood. Hanna brought a diversity action in Massachusetts federal district court against Plumer. Plumer was served with process according to FRCP 4(d)(1) by leaving copies of the summons with his wife at his residence. o Under Massachusetts rules however, service upon an executor must be handed personally to the executor within one year Plumer moved for summary judgment on the grounds that the state law rule regarding service should be used. He argued that the Erie doctrine applies in this case because if Massachusetts rules applied,

the case would be dismissed because Plumer had not been served properly within the states statute of limitations. o On the other hand, if the federal rules applied, Hanna would have an opportunity to have the case tried on the merits. The trial court granted Plumers motion and Hanna appealed, arguing that the rule established in Erie applies only to issues of substantive law and not procedural rules. The First Circuit affirmed and the US Supreme Court granted cert. --Issue = Does the Erie doctrine apply to rules of procedure pertaining to service of process? Does FRCP apply irrespective of whether state or federal substantive law applies? We are applying federal rule. --Holding = Reversed. Service of process under the FRCP was the standard, which the district court should have measured the adequacy of service. --Reasoning The question in this case only goes to procedural requirements. A dismissal for improper service under these facts would not alter the substantive right of Hanna to serve Plumer personally and re-file or affect the substantive law of negligence in the case. Article III and the Necessary and Proper Clause provides that the Congress has a right to provide rules for the Federal Court (FRCP 4(d)(1). To hold that an FRCP must cease to function whenever it alters the mode of enforcing state-created rights would be to disembowel either the Constitutions grant of power over federal procedure or Congress attempt to exercise that power in the Enabling Act. The Erie rule has never been invoked to void a Federal Rule. If there is no federal rule, Erie commands the enforcement of state

law. The federal rule is valid and controls the case. Both the Enabling Act and Erie state that federal courts are to apply state substantive law and federal procedural law. --Concurrence by Harlan The test for deciding whether the Erie doctrine applies to a rule of procedure should be a determination of whether the choice of rule would substantially affect those primary decisions respecting human conduct which our constitutional system leaves to state regulation.

o If so, Erie and the Constitution require that the state rule prevail, even in the face of a conflicting federal rule. Erie wanted to ensure that there were not two conflicting systems of law and the creation of substantive state law by federal courts should be avoided if that creation extends beyond constitutional limits. --Significance = The majority opinion illustrates that the federal interest in creating a uniform code of procedure for the federal court system is secondary to the states procedural laws. In the event there is a direct conflict, the federal law must prevail so long as it complies with the Rules Enabling Act and the U.S. Constitution. --FRCP or federal statute Test Threshold: is rule sufficiently broad to control the issue before the court? If yes, then ask: o Is rule consistent wit the Rules enabling act; is it rationally capable of classification as procedural? o Is rule or statute constitutional? (Art. III gave Congress power to make rules governing practice and procedure in o If no o o federal courts) If yes to both, federal rule controls. federal rule but there is a federal practice Would adhering to federal practice encourage forum shopping? Would adhering to federal practice result in inequitable administration of justice?

--Rule Enabling Act gives the US supreme court the power to create rules of practice and procedure.

Hypo 1: Plaintiff from NY suing defendant from Cali diversity action. State law requires that the complaint pleading be set forth in specific factual detail. Federal rule only requires a short and plain statement known as notice pleading. We are applying test for federal rule.

Threshold: Yes because the rule is basically telling you what is required in the pleading. #1 yes it is rationally capable. #2 yes it is constitutional because our Constitution gave Congress the power to make FRCP. Hypo 2: Plaintiff from Rhode Island suing Defendant from Massachusetts. Diversity filed in federal court in Massachusetts. This is a medical malpractice action against defendant hospital on the grounds that plaintiff got STD due to defendant hospitals negligence. State law requires all medical malpractice suits to go through non-binding arbitration [most states have these types of procedures before you can actually litigate the case]. Under state law, the plaintiff will have to give up a bond to ensure that the defendant can pay for his case if he wins. There is no federal rule that applies to these types of cases. We are applying federal practice or policy test because there is absence of federal rule that governs the procedure for filing this type of case. Because the plaintiff must give up the bond, then it seems like it will be bound up with substantive rights and obligations of the parties yes to #1 because it deals with the defendants remedy. However, if the court found that it was not bound up, then we will go through the next 2 questions: o #1 yes it would be outcome determinative because then the case would be dismissed if you decided to use the state law over the federal law. o #2 the federal interest would be that more people would have a greater chance to bring their action in federal court since there is no arbitration procedure. The second part of Hanna test o #1 yes adhering to the federal practice would encourage forum shopping because the burden on the plaintiff is a lot less because they only need to file the suit. o #2 yes adhering to the federal practice would result in inequitable administration of justice because the hospital would have to defend itself against possible frivolous claims made by diverse citizens. Hospitals may then decide to stop treating diverse citizens because of this practice.

Hospital keeps protection if state law is applied, whereas lose protection if federal law is applied. The case would be dismissed because ______? o Example of case just like this hypo: 643 F.2d 880

Notes and Problems 2. Byrd and Hanna held that the federal court need not behave as a state court would if it were hearing the case. Both presented multi-tiered tests for determining whether federal or state practice should prevail. Hanna narrowly construed, tells a federal court what to do when a Rule or federal statute dictates the federal practice. Byrd deals with a federal practice not dictated by a specific federal statute or Rule. 3. If the statute is constitutional and tells a federal court to do something, the court must follow the dictates of that statute. In the case of FRCP, the analysis requires two tests: Does the Rule promulgated under the authority of the Rules Enabling Act fit its description: rules of practice and procedure? Is the procedure specified in the Rule constitutional? *If the Rule passes both of the above tests, the it must be applied, even if it differs from the state practice in a significant way. If the Rule fails either test, then the state rule applies. 4. There are different tests from Byrd and Hanna to determine what to do if the federal practice in question is not required by any rule or statute. Byrd: is the state practice bound up with the definition of the rights and obligations of the parties? If so, state law governs; even if it isnt part of the substantive rights and obligations, would its application determine the outcome of the cases? If so, are there affirmative countervailing considerations of federal judicial administration present? Hanna: would following the federal practice lead to forum-shopping or inequitable administration of the laws? The state should prevail o The problem with this approach is that for federal diversity jurisdiction to have any usefulness, it should sometimes lead to different results, and if lawyers can predict that, their

obligation to their clients requires them to shop for the most advantageous forum. III. Determining the Scope of Federal Law: Avoiding & Accommodating Erie So long as the statute is constitutional and one knows what the statute requires, the choice of law problem is solved. Burlington North R. v. Woods Stewart Org. v. Ricoh Gasperini v. Center for Humanities Semtek Intl. Inc. v. Lockheed Martin Corp. --Facts & Procedural History (P) filed suit in Cali state court against (D) alleging inducement of breach of contract and various business torts. (D) removed the case to Federal District Court in Cali via diversity jurisdiction and successfully moved to dismiss (P)s claim as barred by Calis 2-year statute of limitations. (P) then re-filed suit against (D) in Maryland state court. MD state court dismissed the suit (kind of like double jeopardy, where you cant litigate something that has already been decided.) (D) again had the case removed to Federal district court for diversity, and asked the court to apply claim-preclusion to the Cali Federal District Courts adjudication on the merits [like res judicata] & dismiss the suit --Issue = Is the claim-preclusive effect of a Federal judgment dismissing a diversity action on statute of limitation grounds determined by the law of the state in which the Federal court sits? --Holding = Reversed and remanded. --Reasoning: Which test applies? Test for FRCP or federal statute applies? Yes to all three questions because FRCP 41(b) is very broad and all FRCP within REA are constitutional. But the court does not follow this Court states that FRCP was not sufficiently broad to control the issue before the court federal law would then be telling state courts that it couldnt extend its own rules in its courts, which infringes on states own powers as sovereignty

So the court moves to federal practice test: 1) a statute of limitations deals with how long the possibility of remedy will last so its pretty bound up SO the state law applies. The Cali decision and statute of limitations only means that this suit cannot be filed in Cali again or under Cali law. The case can go on to MD, but the court does not look to see if MD state law applies or not only says the case can be tried in MD court. --Significance If you get a pattern like this where an FRCP or federal statute is against a state statute, then you should go through BOTH tests!! After finishing the first test, if the court decided that the FRCP was not broad enough, then the court would have to look at the federal practice test then apply the second test and decide. o It would encourage forum shopping because if you file your suit late, then you can go somewhere else. o It would result in inequitable administration of justice.

Notes and Problems 1. This case had a question of how a state court, in a subsequent case, should understand a federal judgment in a diversity action. Specifically, whether the state court should give the federal diversity judgment a broader scope than it would have given a state judgment, had the diversity case remained in state court. NO 2. Federal courts have regularly said that involuntary dismissals under FRCP 41(b) bar not only the claim pleaded but all claims arising from the transaction or occurrence behind the pleaded claim. Note: Interpreting State Law an Entailment of Erie Erie requires federal courts sitting in a diversity action to use state law under various circumstances. That holding requires the federal court to declare state law. On appeal from the district courts judgment, a federal court of appeals must do its best to decide what the state appellate courts would do when faced with the same appeal o This is called an Erie Guess because they have to guess what the states supreme court would do

o Federal CoA required to review de novo district courts determination of state law. Certification the federal court asks the state supreme court for an answer to a question about state law. There are several defects to this system. o The state must have a certification procedure, and many do not have one. But even when the procedure exists, the results are not satisfactory o Sometimes state courts do not accept the invitation to answer the question about state law. Other times they answer, but in terms that leave the federal courts as perplexed as they ere before they asked. o Part of the problem flows from the circumstance that the certification process does not simply pass the whole case to the state supreme court. It is almost impossible for a state supreme court to answer a question about state law because the legal dispute often lies in the facts of the case [which the state supreme court will not know when it gives its answer] When thinking of Erie, state laws, state statutes, state constitution, and highest courts case law will apply.

FRCP Supplement pgs. 427-428 --Shady Grove Orthopedic Assoc. v. Allstate Ins. Co. the court split severely on this case [not precedent] Four justices thought this was a straightforward clash between federal procedural rule and state procedural rule. Since the rule in question did not violate the Rules Enabling Act, it controlled [even though this lead to some forum shopping] o Test for FRCP/federal statute: This directly and expressly applies to class actions so YES. Moving on, YES it is procedural and YES it is constitutional There was a fifth justice who joined in the above opinion, but he insisted on courts greater deference to state interests than what this opinion did

Four justices dissented saying that the majority was departing from the sensitivity previously shown to state interests by prior decisions o Dissent agreed with the end but not the reasoning o There should be a compromise but this dissent does not disagree with any of the tests we use.

11/23/2012 4:11:00 PM 11/9/11 pgs. 257-291 The Process of Litigation A. Approaching Civil Procedure B. Choosing Procedure C. A Roadmap for Exploring Choices Chapter 5. Incentives to Litigate -- Reality of Types of Cases, Value of Cases, and Disposition of Cases Most cases will not be tried in actual court because it is much cheaper and easier to find a resolution and settle the case. --Remedies this will be important to the lawyer because you wont want to waste your time if its not worth a lot or the case sucks Specific Remedies o Specific Performance Obligation to mitigate o Injunction Substitutionary o Compensatory Damages: What is the quantum of a lawsuit? How much the lawsuit is worth. Look at the facts of the case and let me know what its worth. This matters greatly to the plaintiff and the defendant. How much you want as a settlement and how much you are willing to offer for a settlement You will look at similar cases to find a ball park figure o Punitive Damages: an attorney will most likely want to take this type of case because it deals with damages to keep someone from doing the same thing again Most times, there must be a statute that allows punitive damages or gives directions for it o Statutory Remedy statutes can either mandate an amount, give a maximum the person can recover, etc. These will help you decide if the suit is valuable and if you even want to take the case You will also want to look to see if you can get attorneys fees, pre-trial judgment, etc.

Declaratory the party is trying to get the court to declare that he is actually abiding the law in the lawsuit against him which would destroy the cause of action for the lawsuit. o The requirements are that there must be real parties, real activities in controversy, and not just a worry to get an advisory judgment. o Example: case originally starts as Doug v. Bob, and when Bob files for declaratory relief, the suit changes to Bob v. Doug --Financing Litigation State Farm Mutual Automobile Ins. Co. v. Campbell --The review punitive damage award, consider: Degree of reprehensibility of (D)s conduct o Harm caused was physical or economic o Whether tortious conduct evinced an indifference to or reckless disregard of the health and safety of others o Whether target of conduct was financially vulnerable o Whether conduct involved repeated actions or was an isolated incident o Whether harm was result of intentional malice, trickery, or deceit OR mere accident Disparity between the actual or potential harm (P) suffered and the punitive damage award o No concrete or bright line rule, but usually there should a single digit ratio 1-1, 1-9 o A larger compensatory award may justify a smaller punitive damage award o Wealth of (D) may be considered, but it is not a justification for an otherwise unconstitutional award. Difference between the punitive damage award and the civil penalties authorized or imposed in comparable cases o Consider closest civil penalties statute The court performed the test and held: o 1) the injury was not solely economic; o 2) the insurance company evinced a reckless disregard for plaintiffs' peace of mind;

o 3) plaintiffs were financially vulnerable; o 4) the insurance company's defiance increased the likelihood of reoffending; and o 5) the substantial emotional damages were no mere accident --Significance = compensatory damages are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendants wrongful conduct; punitive damages are aimed at deterrence and retribution 11/14/11 Hypo: your client lives Uptown and his next-door neighbor leaves his trash strewn all over the yard. There are now rats and flies, it smells, and its very unattractive. Client has trued to talk to his neighbor, but the neighbor doesnt care. He decides that his only remedy is a lawsuit. What remedies could he ask for? You must find out what your client is looking for & then present his options to him. o Specific remedy = injunction from leaving the trash out on the lawn and clean it up. o Sub Remedy = Compensatory damages because of the pests coming onto your lawn and if his grass is dying. BUT this will not necessarily help the problem No punitive damages because if there is no statute that allows punitive damages, then you cant as for (and if you do, youll violate Rule 11) The client has the right to decide which things to sue for and he might not want to sue for all the things that he can. You will want to adjust what your claims are based on whether you have a judge or a jury trial.

Sigma Chemical v. Harris --Reasoning This case gives a test for what someone has to prove for injunctive relief as a remedy: Balance the interest of the parties what is the hardship on the plaintiff if the injunctive relief is denied? What is the hardship on the defendant if the injunction is granted? o Balance he might not be able to get a job, but defendant knew he was signing the contract and what it meant; plaintiff

would lose their secrets which would create loss in the business. --Things to think about: Why would we say just asking for money damages for breach of contract not enough? Yes we want the money, but we also want to stop him from using the information and telling other their secrets. The court later amends its order and states that he can work for the new company but not in his previous position & the new company cannot use the secrets they got from (D) for a reasonable time [a time they could have found out the information on their own research] this is definitely a loss for (P). Notes and Problems, pg. 290 1. Breach for top-notch building materials Arthur seeks a declaratory judgment, and even though Barbara hasnt sued yet, there are real parties and a real dispute. Arthur is filing a declaratory judgment so that way if he is wrong for some reason, he can mitigate the damages now instead of waiting till a lawsuit is filed against him which would be way worse. Reminds us of LL Bean case 2. Patent Issue Sam can value her declaratory judgment and the damages she claims by showing the value of money she may actually lose if Joe continues with his design OR the value of Joes sale for his design OR a combination of both the loss and sales. Could Sam also put an injunctive relief against Joe? She sure could because this is the ultimate remedy she wants, to make him stop making his design. This could also be subject matter jurisdiction because patent law falls under federal question. 3. Libel suit Theres an issue because there are no parties here saying that what is about to be printed is libel. What if newspaper decides to sue the mayors office? They cant because there is no controversy between the newspaper or mayors office this is only the newspaper walking on the edge thinking they might get in trouble. No cause of action. However, there is also no subject matter jurisdiction because the libel only comes up as a defense to the suit, which violates the well-leaded complaint rule libel is a state law tort action & the

fact that the defense would bring a federal amendment as their defense does not meet the standard for well-pleaded complaint. However, if the mayor got wind of the article, then the mayors office could bring declaratory relief action for injunctive relief to keep the newspaper from actually publishing the article.

--Financing litigation [dont need to know this for exam] Contingent fee [if you win, you get paid; if you lose, nothing] Hourly rate [varies based on type of law your practice, what firm you work for, where you live geographically, etc.] Flat rate for particular service [for every normal divorce, you would charge a flat rate] Retainer Fee-shifting statute or contract Legal aid or pro bono low cost or no cost

11/23/2012 4:11:00 PM 11/13/11 pgs. 333-400 CHAPTER 6 Pleadings A. The Story of Pleading Pleadings tell the contestants initial stories. This elemental storytelling aspect of pleadings persists, and a good lawyer never forgets that behind conventions lie stories. The complaint is the plaintiffs first chance to tell that story, and within convention, a good story is better than a dull one One of the most fundamental and difficult problems confronting a pleading system flows from the circumstance that pleadings have two audiences the court and the defendant(s). o Most defendants will be more interested in the facts underlying the case, so they can know what story they will have to meet in court. o This flips when it comes to the answer plaintiffs want to know the precise details of why the defendant is denying liability o **Both will tend to give sketchier recitations of the facts because they will want more time to make their case stronger against the other party --What are pleadings: Pleadings allowed are under FRCP Rule 7(a) and they are: o A complaint, o An answer to a complaint, o An answer to a counterclaim designated as a counterclaim, o An answer to a cross-claim, o A third-party complaint, o An answer to a third-party complaint, and o A reply to an answer IF the court orders one A pleading is basically anything where someone files an allegation against a party and demands a remedy a pleading is also any answer to an allegation. There are forms for the type of pleading you want to file in FRCP. o These forms really only give you some fill-in-the-blanks, but you still need to know the substance of your claim and what exactly you need to put in the complaint to get your case in!

o One big issue plaintiffs can run into is that they need more information to fill in their pleading to get it past a court, but the defendant has the information they need. --Pleadings are guided by FRCP Rule 8(a) called notice pleading and this applies very generally A pleading that states a claim for relief must contain: o (1) a short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; o (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and o (3) a demand for the relief sought, which may include relief in the alternative or different types of relief Goes back to Chapter 4! Also look at pg. 342 at underlined portion in prayer for relief. Magic language* Rule 8(b)(3) states what a defendant must do when it comes to denying a pleading: o A party that intends in good faith to deny all the allegations of a pleading including the jurisdictional grounds may do so

by a general denial. o A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted Rule 8(b)(4) deals with denying part of an allegation. o A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest --How to challenge the complaint Rule 12(b) Defendants want the case to go away as quickly and as cheaply as possible, so they will often help courts sort through cases based on pleadings and challenge them CML has 6 types of challenges, which are also called pleas Rough Translation Example Effect Modern Pleadings Analogue

CML Dilatory Plea or Peremptory

Plea Jurisdiction not here Defendant asserts that this case does not belong in federal court Case should not proceed because defendant is on active duty in armed services and unable to defend self until discharged Abatement not until this Defendant is fixed asserts case is brought in the wrong venue so what? Defendant asserts that allegations of complaint do not state a claim Traverse didnt happen or I didnt do Defendant asserts that allegations Court grants judgment General or Specific Denial Court transfers or dismisses case Court dismisses the case Rule 12(b)(3) motion Court dismisses case, which can be refilled in proper court Court stays case until defendant is discharged from service Challenge to personal or subject matter jurisdiction Rule 1(b)(1)(2) Typically handled as a defense or by more comprehensi ve statutory scheme

Suspension

not now

Demurrer

Rule 12(b)(6) or demurrer

it

of complaint are false Defendant asserts statute of limitations has run on claim.

on merits for defendant Court grants judgment on merits for defendant

contained in the answer Rule 8(b) Affirmative defense contained in answer release, statute of limitations, accord and satisfaction, res judicata Rule 8(c)

Confession and avoidance

yes but.

--The 6 pleas can be separated into two groups: The first group do not approach the merits of the case. They take no position on either the facts or the law forming the basis for plaintiffs grievance. o The Dilatory pleas are in Rule 12(b) these delay the court proceedings o Personal jurisdiction/ subject matter jurisdiction/ failure to state a claim judge decides these The second group forced the pleader to take a position about the factual allegations of the complaint. o The Peremptory pleas are in Rule 12(b)(6), 8(b) and 8(c) o Traverse/ affirmative defenses jury decides these

Haddle v. Garrison trial court & CoAs holding [original complaint] --Facts (P) while employed with Healthmaster was called upon as a witness against (D) in a Federal action for fraud. When the remaining partners learned of his impending testimony before a criminal proceeding they terminated him. (P) concedes he was an at-will employee.

--Procedural History (P) filed under 42 USC 1985 Civil Rights Act and other state claims, stating that he received harm from his termination which came about because of conspiracy to keep him from testifying in the federal and criminal trial against his former employers. (D)s filed motions for dismissal for failure to state a claim [Rule 12(b)(6)], which District court granted. CoA affirmed this. --Holding & Reasoning = dismisses (P)s claim without prejudice Because he was an at will employee, he has no claim for wrongful termination because the company did not owe him any duty to keep him around. When it comes to a motion under Rule 12(b)(6), a defendant is basically saying even if everything the plaintiff alleges is true, the law afford him no relief. A court should not dismiss plaintiffs complaint for failure to state a claim unless it is very clear that the plaintiff can prove no set of facts in support of his claim which would entitle him relief

Notes and Problems 5. It is almost a universal principle that before granting a motion to dismiss for failure to state a claim, a court will give the plaintiff a chance to amend the complaint to cure the deficiency the defendant and court have identified. Rule 11(b) states that the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery basically a plaintiff should not put something in his complaint unless he has some type of evidence for the statements he makes. Haddle v. Garrison [facts are the same from above] --Holding & Reasoning = reversed for trial. RULE: One who maliciously and without justifiable cause induces an employer to discharge an employee, by means of false statements, threats or putting in fear, is liable in a tort action to the employee. It makes no difference whether the employment was for a fixed term not yet expired or is terminable at the will of the employer.

o A court should not dismiss a complaint for failure to state a claim unless it is clear that (P) can prove no set of facts in support of his claim which would entitle him to relief. To make out a cause of action, (P) must have suffered an actual injury. Just because (P) was an at will employee does not mean he has no constitutionally protected interest in continued employment. The wrong at which 1985(2) is directed is not deprivation of property, but intimidation or retaliation against witnesses in federal court proceedings. The sort of harm alleged by (P) here -third party interference with at will employment relationships states a

claim for relief under 1985(2). --Now what? Plaintiffs case gets to move forward, but it doesnt mean that his claim has merit and he will win just that his claim can move forward. (D)s eventually had to pay the plaintiff $65,000 for damages; there was also a fee shift statute attached where defendants had to pay for plaintiffs case. Note on Consistency in Pleading Rule 8(d)(2)-(3) states that a party may set out two or more statements of a claim or defense alternately or hypothetically and a party may state as many separate claims or defense as it has, regardless of consistency. o This basically means if defendant has allegedly violated a contract with the plaintiff, defendant basically says I never made a contract with the plaintiff and if I did, I didnt breach the contract. The reasons for this Rule are three-fold: o First pleadings come very early in the case, often before parties know all that they will by the time the case comes to trial. Thus the lawyer will set out different, sometimes opposing claims to set forth what seem to him to be the possible versions of law and the facts that appear plausible at the time the pleading is filed. o Second, allegations in pleadings are tempered by burdens of proof. Even though a lawyer may completely believe he clients version of the facts, as a safety net, the lawyer will

allege a different set in case she decides she cannot convince a jury that her clients version is the right version. o Third, even though the pleadings may seem very inconsistent and contradictory, the lawyer will eventually settle on a set of facts after discovery takes place. Our pleading system asks lawyers to form pleadings this way. --Rule 10 (a) = Every pleading must have a caption with the court's name, a title, a file number, and what type of pleading it is (b) = a party must state its claims or defenses in numbered paragraphs. This rule makes it easier to keep track of things o The defendant can then admit to the numbered paragraphs and deny other numbers. --Requiring and Forbidding Specificity in Pleading Courts have often wrestled with the question of how much specificity, just how much detail to require in pleadings. These details can help distinguish between strong and weak cases, but the more details will normally get a case dismissed before discovery. FRCPs short and plain statement is meant to void the issues brought by older forms of pleading, but it has its own issues in our court system because courts do not necessarily agree what short and plain statement means. --What is a short and plain statement? As long as you follow with the Forms supplied in FRCP, then your claim should be allowed to move forward. A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. o From Conley v. Gibson. This was widely used for about 50 years after the case was decided when looked at pleadings FRCP does not require a claimant to set out in detail the facts upon which he bases his claim the Rules only require a short and plain statement that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.

o Rule 8(e) states that no technical forms of pleading or motions are required. o The simple guide of Rule 8(f) is that the pleading must be construed so as to do substantial justice If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding. o Claims lacking any real merit may also be dealt with Rule 56s summary judgment. However, what if the plaintiff runs into an issue where he is not sure exactly what the facts are OR if the defendant actually did something wrong? Parallel behavior v. conspiracy o Look at the case below!

Bell Atlantic Corp. v. Twombly dont have enough info! --Facts (P) brought a class-action lawsuit alleging that (D) and a number of other large telephone companies had engaged in anti-competitive behavior in violation of 1 of the Sherman Act. Specifically, (P) alleged that these large telephone companies had acted in order to disadvantage smaller telephone companies and charge consumers more. --Procedural History = District Court dismissed the complaint because it wasnt specific enough, but CoA reversed citing Conley for the short and plain statement --Holding = reversed and reinstates dismissal of the case. --Reasoning Dismissed (P)s complaint for failure to state a claim under Rule 12(b)(6). (P)'s complaint didnt provide enough facts for the court to find it plausible that the companies had engaged in a conspiracy. Instead, (P)s complaint provided factual bases for parallel conduct and merely stated that an agreement had taken place, with no details to support that allegation need more specifics!! o Parallel conduct actions by competing companies that might be seen as implying some agreement to work together

While parallel conduct is "admissible circumstantial evidence" of an agreement to engage in anti-competitive behavior, parallel conduct alone is insufficient to prove a Sherman Act claim. --Dissent The majority was concerned with the risk that jurors may mistakenly conclude that evidence of parallel conduct proves that the parties acted pursuant to an agreement, when they merely made similar independent decisions. This merits careful case management but does not justify the dismissal of an adequately pleaded complaint without even requiring the defendants to file answers denying a charge that they in fact engaged in collective decision making. More importantly, they do not justify an interpretation of Rule 12(b)(6) that seems to be driven by the majoritys appraisal of the plausibility of the ultimate factual allegation rather than its legal sufficiency. --Significance = The Court's opinion changed the existing interpretation of the notice pleading requirements of Rule 8 creating a new, stricter standard of a pleading's required specificity. The court adopted a more strict, "plausibility" standard, requiring in this case "enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal agreement" Plaintiffs must look at the substantive law to know what to put in their complaint. At Rule 8, the courts take what the plaintiffs complaint says as true, and the court is looking to see if the plaintiff could win based on his complaint. o Here he could not win because there was no specific evidence of a conspiracy, only had evidence of parallel conduct. He needed dates of meetings or all defendants changing prices at the same time, etc. o There must be factual basis for what plaintiff alleges. Plaintiffs cannot just throw around allegations in hopes that they can get to discovery to maybe find something a defendant did. Notes and Problems 1. Pleading issues fall into two groups mainly:

1) The underlying dispute is about the substantive law what facts justify relief for this kind of claim? Haddle does here! 2) There is no dispute about the content of the substantive law, but there is a disagreement about whether the facts pleaded justify relief under that law. Twombly goes here! 2. Think about sloppy lawyer and hard law cases. Sloppy lawyer means the pleading is lacking one of the main elements of the claim, like forgetting to plead causation; Hard law cases are cases where the lawyer has pleaded whatever facts are known to her in support of the claim/ defense, but she is not sure if it is enough. 3. 4. 5. FRCP Supplement pgs. __ Ashcroft v. Iqbal --Facts (P) alleges he was unconstitutionally arrested and imprisoned Question is about whether there was failure to state a claim did he plead factual matter that, if true, proves his constitutional rights were violated? --Procedural History (P) files lawsuit alleging unconstitutional arrest and imprisonment. (D)s move to dismiss on 12(b)(6) and district court denies. CoA affirms denial. Now ruling is challenged in Supreme Court. --Holding = claim is dismissed. --Reasoning Complaint does not require a bunch of detailed factual allegations, but does require more than an unadorned the-defendantunlawfully-harmed-me accusation. Complaint must contain sufficient facts to state a claim that is plausible. Court asks for more than a possibility that the defendant is liable based on threadbare conclusions and rules that plaintiff must have stated more than legal conclusions in the complaint. Haddle is falls under the hard law case category. Twombly falls under sloppy law case category.

In this case, (P) needed to show that the government acted with a discriminatory purpose it is because race rather than in spite of it --Dissent = agrees with the procedure used by the court, but not the result. --Significance = how does the court go through the complaint? Plaintiff must plead elements to state a claim under a theory. However, just stating the elements as a legal conclusion is not sufficient. The court does not have to accept the plaintiffs legal conclusions are true. To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. o A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. o Example: affidavits of people who witnessed a meeting, tapes of something, official government documents, etc. o You need something on which you can base your allegations that will prove that this is more than a coincidence of the time Plausibility is not a probability requirement, but it is more than a mere possibility

--What do we take away from Twombly and Iqbal? You will have to identify the elements you need to = these are legal conclusions. You have to include sufficient factual materials so that your claim is plausible on its face more than a possibility, but not necessarily a probability --Special Cases and Special Pleading Rules FRCP Rule 9(b) fraud or mistake. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake [specific] o There are also some statutes that require plaintiffs to plead with particularity

Stradford v. Zurich Insurance Co. --Facts

(P) had previously notified (D) that on January 17, he returned to his office and found water dripping from frozen pipes which caused extensive water damage to his personal property and the interior of his office. He submitted a revised claim under the Policy totaling $1,385,456.70, consisting of $168,000.00 for property damage, and a business interruption claim of $1,209,456.70. Following an investigation of (P)s claim, (D) disclaimed coverage for (P)s damages and demanded return of what it had already paid. --Procedural History (P) commenced this suit seeking the additional money from his policy [FRCP Rule 8(a)]. (D) counterclaimed asserting that (P) had made fraudulent claims [FRCP Rule 9(b)], and (P) was entitled to the return of $151,154.74, punitive damages, and investigation expenses. (P) moved to dismiss the fraud counterclaims for failure to state claims with sufficient particularity under FRCP Rule 9(b). (D)s submitted a motion for leave to amend their counterclaim. --Holding = (D)s motion for leave to amend is granted. Once (D)s amend, court grants their motion for summary judgment. --Reasoning (D)s counterclaims do not satisfy the first sentence of Rule 9(b), requiring that the time, place, and nature of the alleged misrepresentations be disclosed to the party accused of fraud. (D)s counterclaim sufficiently asserts the general facts that allow the inference that (P) had defrauded it, but (D) did not set forth with particularity the allegations of the fraud. o They need to include the more! --Significance = Claims of fraud or mistake must be asserted with particularity to provide the party against whom such claims are made fair notice of the claim and the grounds on which it is based Notes and Problems 3. Courts have dismissed fraud claims pursuant to Rule 9(b) even where the pleader alleged specific communications because the claims lacked particularized facts to support the inference that a party acted with fraudulent intent.

4. In the average fraud cases, the fraud plaintiffs lawyer wants to get to discovery to uncover information proving that defendant was misrepresenting the facts. But discovery will be unavailable if the complaint is dismissed for failure to plead with sufficient specificity to comply with FRCP Rule 9(b). --Allocating the Elements of a Claim In a system driven by party initiative, one must also ask which party has the responsibility for which of those issues. In technical terms, which elements of a claim must be part of the complaint by the plaintiff, and which are defenses which the defendant must plead in his answer? As a general rule, whichever party has the burden of pleading an issue must also produce evidence to demonstrate the allegation or he will lose the case. For the great majority of common claims, either a millennium of common law cases or the applicable statute provide answers. --Allocating the Elements [example] A person who is injured by the negligence of another has a cause of action against the person whose negligence caused the injuries o Only the 4 basic elements are needed A person who is not himself negligent, but who is injured by another, has a cause of action against the person whose negligence caused the injuries o The plaintiff here would have to prove the 4 basic elements but ALSO that he himself was NOT negligent **The ways you know who has the burden of proof for pleadings can be resolved by looking at statutes and cases. If someone has the burden at trial to prove a certain thing, then he most likely will have the burden to show it in his pleading beforehand. If you get to trial and a juror cant tell based on the proof given, then he will normally go along with whoever didnt have the burden of proof.

Jones v. Block shows how the court deals with a new cause of action and how the new cause of action should be dealt with --Issue = what should a court do when an element set out in a statute is not specified whether the burden of proof falls on Plaintiff or Defendant? --Holding = defendant now ahs the burden of proof. --Reasoning Most courts view failure to exhaust as an affirmative defense because Rule 8(a) only requires simply a short and plain statement of the claim. o The PLRA is not itself a source of the prisoners claim. The PLRA dealt extensively with the subject of exhaustion, but is silent on the issue whether exhaustion must be pleaded by the plaintiff or is an affirmative defense. **When a statute is silent on whether exhaustion is a burden on the plaintiff or defendant, the usual practice should be followed. The usual practice under the FRCP is to regard exhaustion as an affirmative defense. **Courts should generally not depart from the usual practice under the FRCP on the basis of perceived policy concerns. A requirement

of greater specificity for particular claims must be obtained by amending the FRCP. o Specific pleading requirements are mandated by the FRCP and not as a general rule through case by case determinations of the federal courts. --Court looked at the statute and made their determination. Notes and Problems 1. 2. Why does it matter? Whoever has the burden of pleading an element of the claim will also have the burden of producing evidence to demonstrate that allegation. If there is a lack of physical evidence of documents or paperwork, then cases can follow testimony. If the trier of fact is unsure whos telling the truth, the outcome may turn on who has the burden of persuasion, which usually follows the burden of pleading.

3. How does a court decide whether the burden of proving an element falls under plaintiffs complaint or an affirmative defense of defendant? There are 4 steps the courts use: The court will first look at the words of the statute. The court will also look at the Rule 8(c), which lists common affirmative defenses. The list in Rule 8(c) is non-exhaustive. The court will then ask if the statute in question provides that the element could be considered an affirmative defense under Rule 8(c) To answer the question above, the court can look at the legislative history of the statute & take into account the normal practice of courts in this situation if exhaustion isnt mentioned as an element of plaintiffs complaint, it will be an affirmative defense. The court will also take into account a catalogue of cases dealing with the same or similar issue.

4.

B. Ethical Limitations in Pleading & in Litigation in general --FRCP Rule 11 guides the responsibilities of a lawyer to his client and the legal system it is basically the Honor Code for lawyers Rule 11(b) states: By presenting to the court a pleading, written motion, or other paper whether by signing, filing, submitting, or later advocating it an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: o (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; o (2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; o (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and Reminds us of 8(a)

o (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information Rule 11(c) if after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose sanctions on the lawyer, the law firm, or the party that violated the rule or is responsible for the violation o 11(c)(2) 21 days!! o 11(c)(3) court on its own motion sees that there is a violation of rule 11 rule of to show cause. Rule 11 restricts a lawyers ability to file a pleading when he has no more than a hope that favorable facts or law will emerge as the case progresses. o Rule 11 regulates the way lawyers and clients conduct themselves, establishing standards for investigation of law and facts. o If a lawyer or unrepresented party screws up any of the above requirements, then he can be sanctioned. It is now clear that the central purpose of Rule 11 is to deter baseless filings in district court and thus, consistent with the REAs grant of authority, streamline the administration and procedure of the federal courts.

Notes and Problems 1. A/B) No they cant be sanctioned because it must be written, so phone calls dont count (whether it was a party who made the call or a lawyer). C) No he cannot be sanctioned for a groundless interrogatory because it doesnt apply to discovery. 2. If the claim would not prescribe in 2 months, then yes the lawyer for Plaintiff would be sanctioned under Rule 11 because it was not reasonable under the circumstances not to investigate the plaintiffs story. However, if the plaintiffs claim would prescribe the next day, he might not be sanctioned by arguing that he didnt have reasonable time to investigate because the claim would prescribe before he could give evidence. What about the client? Depends on the circumstances of time.

3. If the defendant finds that the plaintiff and his lawyer have filed a frivolous complaint and he provides affidavits and documents, can he catch a remedy? He can file a motion for summary judgment and then file a motion for sanctions under Rule 11 two separate motions [Rule 11(c)]. 21 days must pass before the filing of the second motion. 4. Rule 11(b) does not put an obligation on the lawyer to fix her mistake with an amendment because at this time, she believed something else. If a lawyer or party makes a mistake about the substance of a law, like the statute of limitations running period, then he has to fix it on discovery in order not be sanctioned by the court. IF he finds that after discovery she was wrong, then he must fix it or else he will be sanctioned. 5. Walker v. Norwest Corp. --Facts In a dispute over (P)s trust fund, his guardian, attorney Massey appeals from the district courts award of sanctions against Massey for filing a diversity case in which he failed to plead complete diversity of citizenship and pleaded facts which tended to show there was not complete diversity. Massey had not alleged a citizenship for many of the defendants and did not identify which defendants should be dismissed to create diversity jurisdiction. Upon receiving the complaint, (D)s attorney informed Massey that his complaint showed on its face that there was no diversity jurisdiction and asked him to dismiss his claim or (D) would file a motion for sanctions. o Massey did not dismiss and merely acknowledged (D)s

correspondence. SO he did nothing. --Holding = sanctions against (P) stand. --Reasoning Finding out the defendants citizenship is a burden on the plaintiff in order to invoke [complete] diversity jurisdiction. Massey failed to show diversity and also failed to argue the point of Masseys financial circumstances, allowing for an award of monetary sanctions- there was no abuse of discretion.

--Significance = normally a letter from the defendant is NOT enough!! Must go by the rules set out in FRCPP Rule 11 Notes and Problems 1. Massey violated Rule 11(b)(2) because he filed a frivolous claim because he didnt even address the issue of diversity which was the sole basis of his claim in federal court. 2. When a defendant wants to challenge the plaintiffs complaint on the basis that it violates any of Rule 11(b), he must first give a written notice to the plaintiff of the deficiencies in his complaint and allow him 21 days to amend his complaint [which plaintiff must file with the court]. If the plaintiff does not amend his complaint, then defendant can file a motion to dismiss the claim on basis on violation of Rule 11 (b) with evidence of the deficiencies; he can then separately file a motion for sanctions against the plaintiff. However, the defendant does not necessarily have to give written notice to the plaintiff of his plan because a court has the power of discretion to dismiss a plaintiffs complaint based on violation of Rule 11(b) and give sanctions to the plaintiff. o A court does not have to impose sanctions though, and even if it does, the sanctions do not have to be monetary sanctions The plaintiffs lawyer will have to pay the sanctions for a violation of Rule 11(b)(2) as required in Rule 11(c)(5)(a) because he is represented and lawyers should know the law before the file a frivolous claim in court. 3. Rule 11 explicitly applies to defenses as well. Courts apply an objective reasonableness standard to determine if Rule 11 has been violated. Sanctions can be imposed on law firms, lawyers, or parties who are responsible for the violation. 4. Christian v. Mattell, Inc. [cool blue Barbie v. Claudine] --Facts Attorney Hicks brought suit on (P)s behalf claiming that (D)s Barbie dolls infringed (P)s doll sculpture copyright. The District Court found that (P) should have discovered prior to commencing the civil action that s dolls could not have infringed her copyright

because (D)s dolls had been created well prior to her doll and (D)s dolls had clearly visible copyright notices on their heads. After determining that Hicks had behaved boorishly during discovery and had a lengthy rap sheet of prior litigation misconduct, the District Court imposed sanctions. Under Rule 11, DC ordered Hicks to pay (D) $501,565 in attorneys fees that it incurred in defending against the frivolous action. --Holding = DC was correct in determining the claim was frivolous, but vacated the sanctions judgment. --Reasoning Rule 11 sanctions are limited to misconduct regarding signed pleadings, motions, and other filings not discovery abuses, misstatements, etc. The DC failed to make clear what specific conduct of Hicks it was ordering sanctions pursuant to. Since the CoA was unable to tell whether the misconduct being sanctioned occurred outside the pleadings, such as in oral argument, at a meeting of counsel, or at a key deposition, CoA had no choice but to reverse the sanctions order given that Rule 11 sanctions are limited to misconduct regarding filing of court papers. To impose sanctions on behavior outside of Rule 11 under its inherent authority, the court must make an explicit finding that counsels conduct constituted or was tantamount to bad faith. o Rule 11(c)(6) states that a court order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanctions.

Notes and Problems 1. 2. Some states require that Rule 11 sanctions and similar litigation sanctions must be reported to the state bar, which could then institute a disciplinary proceeding against the lawyer. 3. Sanctions are supposed to be limited to what suffices to deter repetition of the offending conduct = paying opposing sides attorney fees, paying the court for trouble; etc.

Nonmonetary sanctions, making a lawyer apologize, requiring the lawyer to attend classes for CLE, etc.

C. Responding to the Complaint there are three possible responses to a complaint: do nothing, make a pre-answer motion, or answer. --Default: the understandable and unfortunate answer A defendant who fails to respond to the complaint can have a default judgment entered against him. There is an understandable reason for this and an unfortunate reason Understandable reason this flows from the substantive law. o Some cases, a defendant is not afforded many defenses in a lawsuit. The defendant will either lose the lawsuit or pay a lawyer to defend him that he doesnt want to pay for if the judgment will be entered against him anyway. Unfortunate reason a defendant may possess a meritorious defense, but he either does not realize he has such a defense or he knows but he cannot afford a lawyer.

Notes and Problems 1. 2. 3. --Why file pre-answer motion instead of motion? --Pre-answer Motion: think about Rule 7(a) and (b) A defendant who does not default can simply proceed to answer the complaint. In her answer, the defendant can include procedural and substantive defenses. Whatever the defendant places in her answer, she must respond to the substantive allegations of the complaint. She must either conceded or deny the allegations and her part in the events. Unlike a pleading, a motion does not require a party to set forth her version of he facts. Instead it is a request that the court take some action in regard to the lawsuit.

o A pre-answer motion also stops the clock on the amount of time a defendant has to answer a complaint with factual evidence. LOOK THIS UP!!!!! Rule 12(b) motions apply here, but since these motions can delay the next stages of a trial, Rules 12(g) and (h) were put in place to balance the availability of these defenses against the possible abuse of these defenses. o Rule 12(g) states that if you wish to file multiple motions raising the defenses in 12(b), you must file them in one motion in the suit. If you do not, then you will lose the right to file the other ones because you waived it. The only ones you cannot waive are failure to state a claim, failure to join an indispensable party, failure to state a legal defense to a claim, and lack of SMJ. o Rule 12(h)(1) A party waives any defense listed in Rule 12(b)(2)-(5) by omitting it from a motion in the circumstances described in Rule 12(g)(2); or failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course Rule 12(e) Motion for a More Definite Statement o This motion asks the pleader to make more definite and certain his contentions. However, this motion presently is rarely and almost never successfully invoked. If the claim is really vague, then it will be subject to a Rule 12(b)(6) motion. o The most frequent case this is used is when the pleader has a fairly good idea what the claim is about but he wants to know more about the precise nature of the pleaders case Rule 12(f) Motion to Strike o The motion to strike in its most common use allows a party to challenge a part of the pleading that fails under the substantive law, even though the rest of the pleading states a claim or defense.

o In its other less common use, the motion to strike forces removal or irrelevant and prejudicial allegations in a pleading. o Courts will entertain a motion to strike any redundant, immaterial, impertinent, or scandalous matter If the allegations in the complaint have no relation to the case or unnecessarily confusing; If the complaint is overly long and detailed; If the allegations are unnecessarily derogatory Rule 12(c) Motion for Judgment on the Pleadings o A plaintiff could move for judgment on the pleadings if the defendant fails to deny any of the allegations in his pleading [his defense is not a real legal defense to the allegations]. o The court essentially matches up the allegations of the complaint and those of the answer, and it decides whether the judgment for the plaintiff should be entered on the basis of the pleadings. o A case may also be decided on the pleadings alone if the court believes the law is very clear and that further development of the facts would not assist in deciding the case

--Answer: if the defendant cannot demurrer to the complaint or dispose of it on the ground of Rule 12(b), she has to respond to the factual allegations. Denials o Rule 8(b) points out that a party can either admit, deny, or deny because of lack of information. o Rule 8(b) provides that a defendant only needs to deny those allegations which he actually disputes; Rule 8(b)(6) provides that any allegations not denied by the defendant is deemed admitted by the defendant. o The general denial is an allegation that denies each and every allegation in the complaint. However there are extremely rare cases in which the defendant can plausibly deny each and every allegation. A defendant who enters a general denial may well find himself at the end of a Rule 11 inquiry because courts tend to look down on these.

o The party should deny specific elements of the complaint if he does not give a general denial. Affirmative Defenses Rule 8(c) o Accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, duress, estoppel, fraud, illegality, laches, license, payment, release, etc. o The list given is not an exhaustive list; it is merely a list to start with The obligation is on the defendant to raise these along with any claims to file. An affirmative defense is more than just disputing the plaintiffs claims it typically means that EVEN IF the plaintiffs claim is true, there are other facts that will bar the plaintiffs recovery. o Affirmative defense is NOT admitting anything! Example: I deny the existence of contract, and in the alternative, even if we had a contract, I fulfilled it. Or state some affirmative defense like award and arbitration, failure of consideration, duress, etc. There is a difference between a defense and a claim a claim asks for a remedy, whereas a defense does not. So if you claim a defense in your counterclaim, the court will allow it and change it to a defense.

--If you file a 12(b)(2) motion for lack of personal jurisdiction, you will include an explanation with affidavits and depositions. *if its incorporated, then you will include where the business is incorporated, etc. Zielinski v. Philadelphia Piers, Inc. --Facts (P) sued (D) alleging that a forklift owned by (D) caused (P)s injuries that occurred when (P) was in a collision with another forklift on a pier involving one of (D)s employees. (D) asked its insurance company to answer that the complaint should be filed against Carload Contractors because the forklift was

operated by an employee of Carload Contractors. (D) was also aware of this error and investigated whether it and not Carload Contractors owned the forklift. o Johnson stated he was Defendants employee in his deposition. At a pre-trial conference over two and a half years later, (P) found out that over a year before the accident, the business of moving freight on the pier was sold from (D) to Carload Contractors --Holding --Reasoning RULE: Under FRCP Rule 8(b), allegations in a complaint that are not specifically denied are deemed admitted. (D)s general denial of (P)s allegations that (P) was injured by a forklift owned, operated, and controlled by (D) was ineffective because (D) admitted in its letter to the insurance company that (P) was injured by a forklift. In order to be effective, (D) must have specifically denied ownership of the forklift. Under the doctrine of equitable estoppel, (D) cannot take advantage of (P)s mistake when the mistake was perpetuated by

(D)s inaccurate responses regarding ownership and agency --Significance = This case illustrates the consequences of generally denying allegations in a complaint. In this situation, estoppel is an additional ground for deeming the facts to be admitted because Defendant knew that it did not own the forklift yet failed to apprise Plaintiff of this fact. In real legal practice, a complaint should always be answered paragraph by paragraph --Reply WHAT TO DO ON EXAM Personal jurisdiction constitutional analysis Does a traditional basis apply? Pennoyer If so, then state that traditional basis by itself MAY be enough according to Scalias theory in Burnham. On the other hand, Brennans theory stated that you ALWAYS have to go through minimum contacts

So then International Shoe test: There must be a relevant contact between the defendant and the forum state. Purposefully availment: reach out to the forum and avail herself of the forum in some way make money, advertisement, etc. Foreseeability: It must also be foreseeable that the defendant could get sued in the forum state Is this specific or general jurisdiction? Does the plaintiffs claim arise from the defendants contact with the forum? Yes: Specific jurisdiction No: general jurisdiction [defendant is domiciled or at-home + continuous and systematic contacts] Is it fair for the defendant to defend himself in a suit? The burden is on the defendant to show that it is UNconstitutional to bring him into suit. Burden/ inconvenience on the defendant [travel, witnesses, etc.] Forum states interest in adjudicating the claim [McGee v. International Life Insurance Co.] The plaintiffs interest in obtaining effective relief Legal systems interest in efficiency Shared substantive policy [disharmony with families, etc.] --When it comes to transfer, does the person moving for transfer have the burden of proof that the transferee court has personal jurisdiction and proper venue? --States may have forum non-conveniens statutes. But when it comes to the federal forum non-conveniens, they normally dismiss the case so that it can be tried in a foreign court system.