Professional Documents
Culture Documents
Civil Procedure I - Smith - Fall 2013
Civil Procedure I - Smith - Fall 2013
Introduction
Personal Jurisdiction…………………………………………………………………………………………………………………….3
Service of Process…..……………………………………………………………………………………………………………………12
Subject Matter Jurisdiction………………………………………………………………………………………………………….14
Multiple Claims and Parties – Joinder & Jurisdiction………………….………………………………………………..16
Removal and Venue..……………………………………………………………………………………………………………………23
Pleading….…..…………………………………….…………………………………………………………………………………………26
Class Actions.…………………………………….…………………………………………………………………………………………31
I. INTRODUCTION
Authority of Court to Proceed with Action
Illustrative Cases:
SECTION 1 - The judicial power of the United States, shall be vested in one Supreme Court, and in such
inferior courts as the Congress may from time to time ordain and establish.
SECTION 2 - The judicial power shall extend to all cases, in law and equity, arising under this Constitution,
the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases
affecting ambassadors, other public ministers and consuls;-- to controversies to which the United States
shall be a party;--to controversies between two or more states;--between a state and citizens of another
state;--between citizens of different states;--between citizens of the same state claiming lands under grants
of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects……The
trial …shall be by jury; …held in the state where the said crimes shall have been committed; but when not
committed within any state, the trial shall be at such place or places as the Congress may by law have
directed.
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Tickle v. Barton, S.Ct. WV 1956
Facts: Coleman, Barton’s agent (VA), caused an automobile injury to Tickle. Attorney for Tickle
wrongfully and deceitfully tricked Barton into coming to WV and sheriff served him at an event (Alias
process- second attempt to serve). ∆ filed Plea in Abatement * and π filed demurrer*. ∆ won.
Takeaway: A plaintiff cannot effect service of process by tricking a ∆ by entering the jurisdiction.
Notes and definitions:
1. Plea in Abatement: (Motion to dismiss) - In Common-Law Pleading, a response by the defendant
that does not dispute the plaintiff's claim but objects to its form or the time or place where it is
asserted – time, place, manner or mode where the claim has been asserted.
2. Demurrer: Motion to dismiss for failure to state a claim upon which relief can be granted. Legal
way of saying “So What?!” – Lawyer doesn’t deny actions – the process is still valid.
3. Interlocutory hearings: Hearing in the middle of a lawsuit on a particular judgment. Not allowed in
federal court. Allowed in some state courts.
14th Amendment of the US Constitution: No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state deprive any person of life,
liberty, or property, without due process; not deny to any person within it’s jurisdiction the equal
protection of the laws. (Due Process in both 5th and 14th Amendment. 5th for Federal only, 14th covers
states too).
Illustrative Cases:
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Actual act of attachment at the beginning of the suit is better means of notice at the beginning
of the suit.
Attachment of property can work either as a jurisdictional device or a means of recovery.
1. Presence/Domicile/Residence:
Jurisdiction may be exercised over an individual by virtue of his presence within the forum state. That
is, even if the individual is an out of state resident who comes into the forum only briefly, PJ on him may
be gotten as long as service was made on him while he was in the forum state. Jurisdiction may also be
exercised over somebody who is domiciled within the forum state, even if the person is temporarily
absent from the state. A person is considered domiciled in the place where he has his current dwelling
place, if he has the intention to remain in that place for an indefinite period. Domicile does not change
if the person states intent not to return but does not specify new domicile.
Illustrative case:
2. Express consent
When PJ is waived or an agent is appointed for PJ, the person may be served there.
3. Implied Consent
States often exercise jurisdiction over non-residents who conduct businesses within the state, use the
states roads and or social services, and who commit tortuous acts in a state’s borders.
Pennoyer created two rules for jurisdiction, presence and domicile. International Shoe added a third rule
“minimum contacts” to grant courts the right to jurisdiction.
Type of Contacts/Cause of
Action Jurisdiction? Examples – Update these
(1) Extensive contacts/Claim
Related
Yes
Most states have some sort of long arm statutes. Long arm statutes permit courts to obtain jurisdiction
over persons not physically present within the state at the time of service. Long arm statutes usually
provide for substitute service since in-state personal service is not is not possible.
Some long arm statutes give the court great power to decide. That is, they go to the limits of
constitutional powers. Others are more restrictive. Allowing courts more freedom may lead to more
power, but may also clog up courts. However, this may give the courts the best chance to protect their
citizens. See Venn Diagram, below:
Courts only address constitutional questions if they HAVE to – to avoid declaring too many things
“unconstitutional.” So they always address the state statute question first.
Specific Jurisdiction
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CA, premiums paid from CA etc.). CA has manifest interest in providing recourse to it’s residents when
insurers refuse to pay claims.
Takeaway: IF long arm allows, state court satisfies due process when it is based on a contract with
substantial connection to that state.
Usually, a corporation will be found to have the requisite "minimum contacts" with the forum state only if
the corporation has somehow voluntarily sought to do business in, or with the residents of, the forum
state. The above case was useful not for it’s holding, but all the considerations that the court considered
in determining “fair play” and “substantial justice.” The court balances these many factors when
determining whether jurisdiction is proper.
Note that MINIMUM CONTACTS must be established first, before can make FAIRNESS
considerations. Absent the contacts we don’t get to fairness. (e.g. WWVW)
Difference between McGee and Hanson: First ∆ (insurance company) purposefully availed themselves to
CA, whereas the second ∆ (bank/trustee) did not avail themselves to FL.
Products Liability Series: The requirement of "minimum contacts" with the forum state is especially
important in products liability cases.
Effort to market in forum state: The mere fact that a product manufactured or sold by ∆ outside
of the forum state finds its way into the forum state and causes injury there is not enough to
subject ∆ to personal jurisdiction there. Jurisdiction does not move with product. Instead, ∆ can be
sued in the forum state only if it made some effort to market in the forum state, either directly or
indirectly.
Applying our rule from above: IF (1) Minimum Contacts, THEN (2) balance considerations. This rule is
applied to protect the rights of states to hear those cases that may be of interest to them, even more so
than to protect the rights of the plaintiffs.
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Facts: π got injured in a car accident in OK – in a car they bought in NY from ∆ who does business only in
tri-state area. OK court denied motion to dismiss based on no juris. in OK. ∆ appealed against judged to
ask to stop enforcing PJ on them. Held. No PJ since ∆ did not avail themselves of OK. Fairness questions
don’t come into place unless there is PJ first.
Takeaway: Foreseeability that a product might end up in a state is not enough for PJ. The ∆ must
have intentionally inserted themselves into the stream of commerce. No fairness determination
without deciding on PJ question.
Knowledge of in-state sales enough: If the out-of-state manufacturer makes or sells a product that it
knows will eventually be sold in the forum state (as opposed to WWV), this fact by itself is probably
enough to establish minimum contacts. However, if this is the only contact that exists, it may
nonetheless be "unreasonable/unfair" to make ∆ defend there, and thus violate due process.
Contractual relationship involving the state: Where the contract itself somehow ties the parties’
business activities into the forum state, this will be an important factor tending to show the existence of
minimum contacts. For instance, if one party is to make payments to the other, and the latter will be
receiving the payments in the forum state, this stream of payments coming into the state is likely to
establish minimum contacts and thus to permit suit against the payor.
Choice-of-law clause: Where there is a contract between the parties to the suit, the fact that the contract
contains a choice of law clause requiring use of the forum state’s law will also be a factor (though not a
dispositive one) tending towards a finding of minimum contacts.
As Asahi and McIntyre show, there has to be an known entering into the stream of commerce PLUS a
purposeful availment of forum to satisfy the “minimum contacts” required for due process to be met.
Even more so with foreign defendants when it might be “unreasonable” to have them defend a suit in the
United States. “Stream of Commerce Plus” Rule – where there is stream of commerce plus something
else, like customer service, purposeful availment et al. there will likely be jurisdiction.
General Jurisdiction
Two types of actions: There are two types of actions that relate primarily to "things" rather than to
people: (1) in rem actions; and (2) quasi in rem actions.
In Rem Actions
Ones that do not seek to impose personal liability on anyone, but instead seek to affect the interests of
persons in a specific thing (or res). (Examples: actions to quiet title to real estate or to foreclose a lien
upon it; actions for divorce.) In all of these types of in rem actions, no judgment imposing personal
liability on anyone results – all that happens is that the status of a thing is adjudicated. (Example: In a
quiet title action, a determination is reached that A, rather than B, is the owner).
Specific performance of land sale contract: One important type of in rem action is an action for specific
performance of a contract to convey land. Even if the defendant is out of state and has no connection
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with the forum state other than having entered into a contract to convey in-state land, the forum state
may hear the action. ∆ does not have to have minimum contacts with the forum state for the action to
proceed – it is enough that the contract involved in-state land, and that ∆ has received reasonable notice.
Jurisdiction may be exercised over an individual by virtue of his presence within the forum state. That
is, even if the individual is an out-of-state resident who comes into the forum state only briefly, personal
jurisdiction over him may be gotten as long as service was made on him while he was in the forum state.
Illustrative case:
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presence in the state at the time of service, even though that presence was brief, and even though D had
virtually no other contacts with the state. Scalia v. Brennan discourse on pages 180-191
Takeaway: Long discussion, but in person service valid because of traditional notions of fair play
and justice (tradition key word for Scalia), and because (Brennan) ∆ availed himself to California’s
laws and protections, travel is easy etc. Voluntary presence enough to establish PJ.
Jurisdiction by Consent
A defendant that challenges jurisdiction in a court is then obliged to abide by the court’s ruling on that
jurisdiction.
SCOTUS has not resolved this issue and some states rule that foreign corporations that register to do
business in a state are amenable to suit there despite maybe not meeting minimum contacts
requirements (South Carolina) yet others have ruled that registration to do business and appointment of
an agent to for service of process is enough for general jurisdiction (Minnesota).
Jurisdictional reach of Federal Courts (Service of Process - Rule 4, Supp pp. 16)
Rule 4(k)(1)(A) authorizing the federal court to piggyback on the long arm statute of the state it sits in.
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Rule 4(k)(1)(B) special service rule that allows additional parties to an already pending action to be
served if they reside within a 100 miles of where the court sits.
Rule 4(k)(1)(C) permits service when authorized by a federal statute
Rule 4(k)(2) federal long-arm statute that establishes PJ, for a federal law claim, where the ∆ cannot be
reached by long arm statute of any state. Step 1. PJ in any state? Step 2. Contacts with US satisfy due
process?
Rule 4(n) jurisdiction by attaching any form of property, even intangible (Page 198 note)
Challenging Jurisdiction
Rule 12 (Supp. pp. 43): A party must raise a jurisdiction issue before any other proceedings occur. If
they do not do so, they identify themselves as amenable to the court’s jurisdiction, and the defendant’s
right to question jurisdiction in the future is then waived.
Notice generally: Even if the court has authority to judge the dispute between the parties or over the
property before it (covered in the above sections), the court may not proceed unless D received
adequate notice of the case against him.
Reasonableness test: In order for D to have received adequate notice, it is not necessary that he
actually have learned of the suit. Rather, the procedures used to alert him must have been reasonably
likely to inform him, even if they actually failed to do so. Example: Leaving with wife at home.
Notice Mantra
“Reasonably calculated, under the circumstances, to give actual notice.”
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present must get at least mail. Enough of them that even if MOST get service, the interests of all will be
protected. They all want the same/similar things.
Takeaway: Notice must be reasonably calculated, under the circumstances to reasonably convey
the required information and afford reasonable time to make appearance/respond.
Individual ∆ Rules: Service on an individual (Rule 4(e)) may be made in any of several ways:
a. Personal (Rule 4(e)(2)): By serving him personally;
b. Substitute (Rule 4(e)(2)): By handing the summons and complaint to a person of "suitable age
and discretion" residing at ∆’s residence;
c. Agent (Rule 4(e)(1)): By serving an agent appointed or designated by law to receive process.
(Example: Many states designate the Director of Motor Vehicles as the agent to receive process in
suits involving car accidents);
d. Local state law: By serving ∆ in the manner provided by either (Rule 4(e)(1)):
(1) the law of the state where the district court sits, if that state has such a provision, or
(2) the law of the state where the person is being served. (Example: π brings an action
against ∆, a resident of California, in New Jersey federal court, and wishes to serve him by
certified mail. Service will be possible if either the courts of New Jersey or California allow
certified-mail service.)
Corporation ∆ Rules: Service on a corporation may be made by leaving the papers with an officer, a
managing or general agent, or any other agent authorized by appointment or by law to receive process
for the corporation. FRCP 4(h)(1).
a. Local state law: As with individuals, service on a corporation may also be made in the manner
provided by the local law of
(1) the state where the action is pending or
(2) the state where the service is made. FRCP 4(h)(1),first sentence.
Waiver of service: Rule 4(d) allows plaintiff to in effect serve the summons and complaint by mail,
provided that the defendant cooperates. π mails to ∆ a "request for waiver of service"; if ∆ agrees, no
actual in-person service is needed. Applied to both individuals and corporations.
Incentives: ∆ is free to refuse to grant the waiver, in which case π must serve the summons by the
in-person methods described above. But, if ∆ refuses the waiver, the court will impose the costs
subsequently incurred by π in effecting service on ∆ unless "good cause" is shown for ∆’s refusal.
(FRCP 4(d)(2), last sentence.)
Notes:
Some state rules and federal rules allow an employee of sufficiently high placement, who has the
knowledge of what to do with summons to be served, instead of/along with the “designated”
official, if any.
Appropriateness of notice is more important than actual notice – not required to make inhuman
efforts for notice.
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Publication only okay for unknown/conjectural people.
Waiver may not be returned if statute of limitations is running out.
Reasons to comply with service of process statutes:
o Don’t want to invite disputes, way to minimize disputes about notice.
o Similarly suited parties should be treated equitably.
o Mere fact of actual notice doesn’t guarantee timely notice – complying with rules more
likely to give not just actual notice but also timely notice.
o Would be invitation for the ∆s to just not show up when not served properly.
Diversity Jurisdiction
1. Complete Diversity §1332 (However, the courts have said this is not a constitutional requirement. If
congress wants to change the statute to allow for minimum diversity it can, but it hasn’t).
2. Citizenship
a. Individual: Domicile – determined largely by state of mind – intention to leave or stay long
term can create or destroy domicile. It cannot be evaded or created just by verbal testimony –
there has be proof of roots or no roots.
b. Corporation: 1332(c)(1)- Citizenship at most domiciled where Inc. and PPB (“Nerve center”).
c. Unincorporated Associates: Partnerships, labor unions, etc. – Determined by Citizenship of
all of the Members. e.g. A law firm is a citizen of all the states it’s partners are citizens of.
d. Representative Actions: One person files a suit on somebody else’s behalf – 1332(c)(2)
Citizenship of the representative party is the citizenship. Still rule of class action rule.
Citizenship of the represented party is the citizenship for executors, infants and
incompetence.
3. Citizenship that matters is the citizenship at the time suit was filed. It’s NOT “at the time of the claim
inducing event” because not all events are one day – some are continuous.
Amount in Controversy
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Rules that govern Amount in Controversy
1. Dollar amount - Good faith/unless it can be proven with legal certainty that it is not a good faith
number.
2. Injunctive relief –
a. What is the injunction worth in money?
b. To whom should we calculate the cost or the value of the plaintiff? Also have to look at ∆’s loss.
3. Aggregation
a. One π v one ∆ - π’s claim can be aggregated for all claims even if they’re unrelated.
b. Multiple πs cannot aggregate claims unless there is a “common and undivided interest” – if one π
did not collect the other parties would get more.
c. Two πs who jointly own property etc. – the claims can be aggregated. Because if one died the other
would get it all anyway.
d. One π against two separate ∆’s – one is 80K and the other is 30K then the 30K gets severed and
sent to state court.
e. Joint and Several Liability – $80K against multiple ∆ will meet threshold.
The Constitution gives the federal courts authority to hear "federal question" cases. More precisely,
under 28 U.S.C. §1331, the federal courts have jurisdiction over "all civil actions arising under the
Constitution, laws, or treaties of the United States."
Federal claim: There is no precise definition of a case "arising under" the Constitution or laws of the
United States. But in the vast majority of cases, the reason there is a federal question is that federal law is
the source of the plaintiff’s claim. (Examples: A claim of copyright infringement, trademark infringement
or patent infringement raises a federal question, because in each of these situations, a federal statute –
the federal copyright statute, trademark statute or patent statute – is the source of the right the plaintiff
is asserting.)
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From Mottley: Well-Pleaded Complaint Rule: The federal question must be integral to π’s cause of
action, as revealed by π’s complaint. It does not suffice for federal question jurisdiction that π anticipates
a defense based on a federal statute, or even that ∆’s answer does in fact raise a federal question.
JOINDER
Claim Joinder – ability of litigant to join together multiple claims in one law suit.
πs can join together on the left side of v. or can join ∆s on the right side of v. if the claims they
are asserting transpire from the same
o Transaction or occurrence
o Common question of law or fact
Permissive
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Rule 13 (Page 48 of Supplement) - Counterclaim and Cross Claim
1. Counterclaim: Claim against an opposing party (opposite side of v.) who has already asserted a
claim against you. When the ∆ asserts a counterclaim, the ∆ is acting like a π for that claim.
Compulsory Counterclaim
o Under Section 13(a) a ∆ must bring any counterclaim that:
Arises out of the same transaction and occurrence that is the subject matter of the
opposing party’s claim
Don’t HAVE to bring a counterclaim, just waive the right to bring it later if you don’t.
Permissive Counterclaim
o Under Section 13(b) a pleading may state as a counterclaim against an opposing party that
is not compulsory or not related.
2. Crossclaim Rule 13 (g): Claim against a coparty (same side of the v.)
A claim against a co-party is allowed as long as it arises from the same transaction or occurrence
as long as it is the subject matter of another claim in the case (this can be the original subject
matter or a counterclaim).
If it’s not the same T&O then it cannot be brought.
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o Person claims an interest and disposing off the case without the person may:
Impede the person’s ability to protect the interest or
Leave the existing party open to risk of multiple obligations
Have to ask whether it is feasible to join the new party
o Will they destroy SMJ?
o Is there PJ?
If it’s not feasible, can the suit continue without the party?
Pendant jurisdiction exists whenever there is a “claim arising under Federal Law” - the
Constitution, the laws of the US and treaties made and the relationship between that claim and the
state claims made in the compliant permits the conclusion that the entire action before the court
comprises but one constitutional case.
o The federal claim must have substance sufficient to confer SMJ on the court
o The state and federal claims must arise from a Common Nucleus of Operative Fact
o Such that would ordinarily be expected to be tried together
Justification? If not allowed to join then options are to bring one claim in one court, two
concurrent lawsuits in two courts, or both in state court (which may be prejudicial).
Brennan says Fed. Courts should exercise discretion in hearing related state claims (Judicial
economy should be the consideration).
When to dismiss
o If federal claims dismissed, state claims should be dismissed too.
o If state claims dominate, should be left to state.
o If jury confusion would result… should be severed.
Section 42 USC 1983 (Important statute) – πs can sue state officials for violating their federal rights
under the “color of state law.”
Hypo:
P (WA) v. M(WA)
P sues M in federal court under federal anti-trust
M counter claims against P under state law for breach of contract, same CNOF
Allowed?
Yes. BECAUSE - Ancillary jurisdiction under compulsory counterclaims OKAY but not under
permissive counterclaims.
Part (a) - When the district court has original jurisdiction over a case the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the action that they
form part of the same case or controversy. “As long as it’s constitutional – it’s under the
supplemental jurisdiction of the court.”
o Gibbs would be decided the same way.
o Finley would be overruled by this sentence – “Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional parties.”
Part (b) - Limits the scope of (a) – by saying supplemental jurisdiction not allowed where it
destroys complete diversity. “If the basis of SMJ is complete diversity, no supplemental jurisdiction
over claims BY THE PLAINTIFF over DEFENDANTS made parties under Rule 14 etc..”
Part (c) – Is Gibbs codified. In certain cases the district court can decline to hear a state claim – π
can refile state claims in state court – or dismiss one claim – or take up both claims in state court.
1000 Exxon dealers filed a class action suit but each one did not meet the AIC requirements.
Before Section 1367 came into law, courts had held that each π had to meet the AIC requirement
for diversity.
Court held that - As long as there is one claim by plaintiff over which the district court has
original SMJ, it can assert supplemental jurisdiction over all the other claims of plaintiffs
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who do not meet AIC requirements because 1367 (b) bars claims against DEFENDANTS
made party by Rule 20, not PLAINTIFFs.
Justification:
o The very reason for having diversity jurisdiction is to avoid bias, and both parties are
affected when diversity is destroyed.
o AIC is completely different from Diversity.
o The presence of non-diverse parties defeats the justification for a federal forum.
o Congress was trying to avoid, the destruction of complete diversity.
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P (MD) and D & R (VA) get into an accident.
REMOVAL
Removal permits a ∆ sued in state court to change the forum to federal court.
Rules for Removal (Section 1441, Supplement pp. 265; 1446-7, Supplement pp. 269-71)
(3) P(NY) v. D(CA) in NY state court. Can this be moved to CA Federal court?
No removal is to be vertical. So has to remove to federal court in NY.
Venue Rules (Section 1391 – Venue Generally, Supplement pp. 258; 1404 – Change of Venue,
Supplement pp. 262; 1406 – Cure or Waiver of Defects, Supplement pp. 273)
1. Venue
2. Transfer
3. Forum non-conveniens
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When can defendants ask for transfer to another Federal System?
TX venue is okay under 1391(b)(1) and (2) – TX is residence of Howell and all the infringement of
patents is happening in TX.
Howell probably wanted to move to IL because the 7th circuit probably had better law for the ∆s.
That’s probably why the π wanted to litigate in 5th Circuit.
SCOTUS Created 2 step test for transfer:
(1) Might have been brought/consent
(2) Convenience/Justice
SCOTUS says under this test the case should not have been moved to IL.
This lawsuit could not “have been brought” (absent consent to PJ) in the federal district of IL b/c
no personal jurisdiction in IL and no venue in IL.
Defendants can move to transfer any place they want, but plaintiffs can’t file anywhere they want.
– that would be kind of unfair and render the half statute unfair.
After Hoffman, every motion to transfer venue – requires the district court to analyze
whether there would be appropriate PJ or venue in the place to be moved (absent consent
for both) – also in the interest of justice and convenience of the parties.
Forum Non Conveniens – Remedy of Last Resort only when the π brought suit in particularly
inappropriate forum
VII. PLEADING
Rule 7 – Pleadings Allowed, Form of Motions and Other Papers, Supplement pp. 29
Rule 7 – pleadings shall include a complaint and an answer, and if the court requires one, then a reply (if
a counterclaim under rule 13).
Usually only two documents— Plaintiff’s complaint and defendants answer. This happens over again
each time a party is joined or a counter claim or something.
THE COMPLAINT
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Short and Plain Statement of Claim Showing that the π is Entitled to Relief
THE ANSWER
Except for a Motion to Dismiss for Subject Matter Jurisdiction all other motions have to be brought at
the outset of the complaint.
Motions to dismiss are always filed at the outset under 12(b)(6) since it stops the clock and requires
plaintiff to respond.
Affirmative Defenses
Not denials, excuses or avoidances for the π’s claim. It offers some other reason why the plaintiff
cannot recover.
Hypo - P v. D for breach of contract
o D could say, - “Never signed contract.”
o D could also say “K was induced by fraud.” – Affirmative Defense.
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o Contributory negligence (affirmative defense).
If the defense fails to raise an affirmative defense it is waived – defense might not be available
later.
Substantive law: Fraud or misrepresentation is an affirmative defense.
The answer, at a minimum is a place to raise affirmative defenses.
Also respond to allegation:
o Admit it
o Deny it
o Insufficient information to respond to information – limited by the more general
requirement of candor.
21 days after service to respond (unless service was waived in which case 60 days).
General denials are frowned upon
Rule 8(b)(3) – general denial cannot be used unless the corporation wants to deny everything.
Must deny each thing specifically and admit to anything that is true.
Amendment Issues
Rule 15 - Rule Amended and Supplemental Pleadings, Supplement pp. 51
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(3) Actual or constructive amendment at trial with implied or express consent.
What happens if the π tries to add a new party after the statute of limitations had run?
This part comes in at “stage (2)” from above list, after 21 days but before trial.
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Under 15 (c)(1)(c) Zielinski would have been able to relate back to a different ∆ if within 120
days (Rule 4(m)) of filing of ORIGINAL suit – the ∆
(i) Received such notice of the action that it will not be prejudiced in defending on
the merits; and
(ii) Knew or should have known that the action would have been brought against it,
but for a mistake concerning the proper party's identity. (Krupski v. Costa Crociere,
SCOTUS 2010)
Would the π in Beeck (Page 627) have been able to relate back to the old filing when they find the
actual defendant and want to sue them:
o No because the new ∆ would not have known within 120 days that the action would have
been brought against them.
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Rule 23 – Class Actions, Supplement pp. 64
1. Numerosity
Enough members to justify the use of the class action mechanism. Usually more than 40 yes.
Fewer than 25 then maybe just join together in an action.
2. Commonality
Efficiency and fairness – common questions of law or fact
3. Adequacy
Whether the representative party adequately and fairly represents interests of absent class
members
Plaintiff has to at a minimum have interests that coincide with absent class members.
Somebody we trust to stand in shoes of absent class members.
23(g) – lawyer also has to have sufficient experience in class actions to handle such a suit.
4. Typicality
Representatives have to be typical of those of the class. “Each class member’s claim arises from
the same course of events, and each class member makes similar legal arguments to
provide the ∆’s liability”
Hypothetical Suit:
Practice of firing flight attendants when they become pregnant – class action lawsuit on behalf of all
current and former attendants terminated because of pregnancy.
- Enjoin the company from policy
- Reinstate all fired flight attendants
Numerosity – Yes
Commonality – Yes
Adequacy?
o Two sub classes
Fired for being pregnant
Female but not been terminated because not yet pregnant
o The current flight attendants may not want to lose their seniority which might occur from
retroactive relief
o The flight attendants who don’t want to have children are actually benefitted from policy.
Typicality – Kind of the same as adequacy.
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Castano v. American Tobacco Co., 5th Circuit 1996, Handout
Can the suit be maintained as a class action – can it be certified?
o Certification gives tremendous leverage to the π to force a settlement
o Sometimes courts allow discovery just for certification
o Immediate appeal allowed for certification of class action.
A federal court can certify a class action if the requirements of 23(a) are met and can satisfy one of
the requirements of 23(b)
23(b)(1) – Prejudice
o (1)(A) Different suits would create different standards.
Prejudice to ∆
Usually applies mostly to injunctive relief – e.g. Voter registration
o (1)(B) Pot of money will run out.
Prejudice to π
23(b)(2) – Injunctive Relief Suit.
o Likely to satisfy rules of the prejudice class in 23(b)(1)(a).
o Applicable conduct - ∆ has acted same way towards all absent class members
o Want ∆ to stop doing something.
23(b)(3) – Damages Class, Predominance/Superiority
o All class members injured in roughly in the same way.
o What state’s law applies to the claim?
o Predominance - Have to show that the π relied to their detriment on the
misrepresentations.
o Superiority- Might be more benefit to pursuing individual suits.
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Jurisdictional Concerns
Assume plaintiff from MD brings a nationwide class action in MD against AT&T (Inc. in DE with PPB in
NY).
P(MD) v. D(NE/NY)
Is there diversity?
o Citizenship in class actions is defined by the person bringing the party, named
plaintiff
o Even though there are absent class members from DE or NY.
Damages to the plaintiffs range from $10 to a $1K dollars to the π
o Snyder v. Harris – can’t aggregate the claims of individual plaintiffs to satisfy the AIC rules.
o Is this true after Exxonn case?
In this case we can’t aggregate claims since Exxonn requires that there be original
jurisdiction over at least one claim.
Section 1332(d)(2) – if there is minimal diversity and some percentage of the class members are not
from the same state you can be in federal court and the sum/value is over $5MM.
More deserving of class action certification because it would never be feasible to bring a suit over
a small amount.
Personal Jurisdiction
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