Attack Outline

SMJ
Diversity – cdd, ca- can join additional; AIC over 75, plaintiff gets ben of doubt unless legal certainty, nonmonetary damages may be eval. -
aggregation rules: basically never unless If a P has 2 or more claims v. same Defendant
If there is a joint interest (p or ds) then those claims are aggregated ( technically just considered a unit, like spouses buying a house and suing
as a unit) ; Citizenship- domicile/ PPB (Nerve Center) +Incorp OR Assn. Each of Members
FQ- Arising Under 1331; Well pleaded complaint Mottley- cant anticipate a defense
Const. only requires Fed ingredient; Holmes Test- fed. Claim creates COA or embedded state law claim (Grable: raise a stated fed. issue,
actually disputed and substantial and jur. doesn’t upset federalism)
Supp Jur 1367 Claim is hooked onto another with proper jur.; Gibbs standard “nucleus operative facts; 1367- (power) A broad grant when same
case/contr.; (excpetion) If joinder would destroy complete diversity then no supp jur over these claims (AIC doesn’t affect just complete
diversity) ; c- Court (discretion) to decline supp jur if : 1)the claims raises a novel or complex issue of state law
2)claim substantially predominates over the claims where the court had original jurisdiction
3)if court dismissed all the claims in the suit over which it had original jurisdiction
4) exceptional circumstances- catchall

PJ BASIS AND NOTICE

Basis
Legal Framework from Pennoyer:
Terr. Jurisdiction: in personum, in rem quasi in rem

Specific Jur:
over ind and corps. Minimum contacts test: *Continuous and systematic/isolated and sporadic contacts with the forum state with the cause
of action arising from those contacts.
Corps: Purposeful Availment Deliberate, intentional and conscious targeting of the forum state by the Defendant.; Stream Of Commerce: Ashai
4/4 Split One side: Targeting the Forum; Mere Awareness does not equal purposeful availment, However if these add. Factors are present
can indicate intent / purpose to serve the forum state such that SOC would be enough: Fairness Factors 1. Burden on the Defendant 2.
Interests of the Forum State in the Litigation 3.P’s interest in convenient and swift relief4. Judicial system’s interest in obtaining most efficient result
5.Interstate Social Policies ;;Other Side Sending goods into the stream of commerce, at least substantial quantities constitutes “purposeful
availment whether or not the D knows the goods will be sold in a particular state or cultivates customers there.
FORSEEABILITY D must have known or reasonably anticipated that her activities in the the forum made it foreseeable that she might be hailed
into court there. World Wide Volkswagen
Burgerking Choice of law clause doesn’t preclude pj analysis in contrast- Took the wwvw 5 factors and said these factors sometimes serve to
est. reasonableness of jurisdiction upona lesser showing of min contacts than would otherwise be required- 5 factos tip the scale- look at
when things are close
On the other hand if D says no PJ he must provide a compelling case
It’s easier to confer PJ than it is to defeat PJ.

Calder Effects- Intentional Torts elements: Intent, uniquely expressed, likely to be suffered in forum state
Zippo: Websites: test sites interactivity (active yes , passive no, interactive Jurisdiction is determined by examining the level of interactivity and
commercial nature of the exchange of information that occurs on the web site.)

General Jur Continuous and systematic contacts with the forum state where the cause of action does NOT arise from those contacts:
COAdoesnt matter
Over Corp
Gen, In personum Jur over corp PPB and Incorp (Daimler)
Consists of continuous and systematic contacts between D and forum state: such that D is essentially at home in the forum state
(goodyr) , Perkins was used in WW2 for foreign co. temporarily running out of Ohio, purchase at reg. intervals not enough.
No tag jurisdiction over corp. if agent is personally served

Individual
Personal Serivce in forum state where served with process
Burnham (tag jur. ) personal in state service on nonresident ind. is still enough ONLY applies to indivdiauls not corps

Domicile
Excceptions No if D involuntarily brought (kidnapped)
No if tricked into the jurisdiction
No if you come to testify as a witness or party you cant be served
Consent: Express- forum selection clause or appointment of an agent Carnival – fsc precludes whole pj analysis;
easier to confer pj than to defeat pj
Implied- Statute saying that nonres motorist implicitely consent to suit in MA by driving through
Waiver- attends a proceeding/ conducts discovery- when d acts in a way inconsistent with pj objection
Long-arm state law allowing the state courts to ex. jurisdiction over out of state or nonresident defendants. Every state has one. Enumerated –
does d fall w/ in one of these or Unenumerated – skip to const. limits min contacts, purp. Availment and fairness factor bal.

Challenging PJ : DirectAttack Special Appearance/ 12(b)(2) Motion- objs to pj at issue- if wins (ct agrees no pj) case dismissed; If loses- D can
still defend case on merits: If win on merit- must enforce jur in forum state and other states; If loses on merits: D can appeal- on merits and
never had pj *Obj. to PJ 1st or waive special appearance Coll.Attack D defaults and contests jur in enforcing Court; P goes to enforcing state to
domestice judgement, enforcing state may decide on the jur. issue: If no- can refuse to follow rend. Ct judgement; If so- MUST enforce
judgement RISK to D! D can’t default and later deny merits in enforcing court. FF+C precludes reexam of merits which were decided by
default. – (waived objection to pj by not showing up)

Notice and Service of Process

Notice: Constitution: mullane reasonably calculated under circ., reasonably certain to inform of pendency and give opp to be heard.
Constitutional notice is not actual notice
Method of Notice: Rule 4 1. Select method- statutory state or fed. 2. Make sure the method you chose is constitutional under the
circumstances: Serving an Ind, Corp, Foreign Party , can waive formal service : notice and request, fail to waive- expenses, 30 days to
return, 2 months then can file a complaint to serve with ct. 120 days

Restraints on Constitional Power

Long Arm: Suits against nonresidents not served in state

Necessary for both
Enum/ Unenum
Federal 4(K)- (1) (a) If state has pj via state long arm and due process then the fed court in that state does too (k)(1)(c) when nationwide
service auth by fed. statute 4(k)(2) fed Question cases: If no state works serving summons est pj as long as constitutional; unclear
whether aggregate us contacts is enough (bin ladne and McIntyre)
Or 3 other circ

Venue
Solely from statutory sources 1406a-dism. , 1404a-transf.
Which federal judicial district a suit can be brought in
Fed- 1391 if all ds reside in same state district where any D resides OR subs pt. of events occurred, ONLY if neither above gives dist (rare)
where any d subj. to pj
State- county?
Still need pj
Venue of Aliens 1391c3

Transfer/ Forum non

Transfer 1404 moves case
Forum non CL doctrine- dismisses bc foreign forum more convenient (private and pub. Interest factors) Private Factors

1. Relative ease of access to sources of proof

2. Availability of compulsory process for attendance of unwilling witnesses
3. Cost of obtaining attendance of willing witnesses
4. Possibility of view of the premises
5. If view would be appropriate to the action
6. And all other practical problems that make trial case easy

Public Factors

1. Court congestion
2. Localized controversy should be decided at home
3. The forum is at home with the governing law
4. Burdens of jury duty
5. Conflicts of Laws: Having to figure out which law applies (strains judicidal resources)

Joinder
Claims
P v. 1D always, never compulsory, but res judicata concern and proper joinder NOT Equal proper smj or PJ
D against P? Counterclaim and cross- rule 13 (compulsory “same trans. Or occurrence, permissive: all others) SUpp jur exists over
compulsory cc
D against another D 13g “same trans or occurrence otherwise may not assert, nless already has one meeting with P because D then
steps into shoes of P and regular rule sapplies
P join multiple D? 20a2 same trans/ occ AND common question of law or fact
Multiple ps join ? 20a1 same standard as for mult. D’s
D join a 3rd Party? Rule 14 Must show 3rd Is or may be liable for all or part of Ps claim
AIC not as imp. As div of citizenship

Removal Done B D’s when case could’ve been originally filed in fed. Court 1441
Cant be on basis of counter claim -all ds must agree
If diversity case : D cant removce if cit of forum state
Within 30 days of when ascertain that case is removable, but only for diversity- absolute one yr limit after filing complaint
Remand- 1447 Attempt by P to return back t state ct , if for smj no time limit otherwise 30 days of filing notice of removal

Erie: Diversity actions in Fed cts

Pre_ fed cts free to follow what. Substantive law they felt was best if not state statute
Post Erie and Progency Fed cts fed proc, state subs. Law (statutory or common

Formeradj.
Claimprec: bars relit of same claim by same parties after judgemtn on merits
“same claim”? maj test – whether suits arise out of same transaction- broad
Narrow minority only if suits use same evidence or same core of operative facts
Issueprec. Bars relitigation of issues thatve been litigated b4. Precise issue msut have been lit. before. Which makes issue prec. Diff.
from claim prec. Under the broad test
Winner in suit 1 cant invoke issue prec. Against nonparty to 1st suit – violates Am. 14
Offensive v. Defensive Prec- In second suit isseprec canbe invokes against loser in suit 1

Pleadings
Complaint 8(a) – jur, short plaint statement, relief, 10a Necessary Compenets
1. How a complaint can fail: Doesn’t give the D fair notice of what D’s claim is (Connelly v. Gibson)
2. If Pleadings are true, no legal entitlement to relief
3. If not enough facts, but rather legal conclusions masquerading as facts
4. Claim ( specific facts within it) needs not only to be conceivable but plausible- TWQBAL
5. 9(b) complaint will fail if fraud or mistake- needs to bbe pled with particularly- time place nd manner of the fraud.
6. Rule 11 motion -if complaint or pleading frivolous- this is a motion for sanctions- must give party 21 days safe harbor to withdraw or
amend pleading
7. Need to know WHO can be sanctioned and the NATURE of the sanctions
Burden of Pleading: Jones v Bock pg 39
Rule 11 Ethical Limits on Pleadings, can impose sanctions- Once you determine that something is sanctionable:
Who is going to be sanctioned? AND
What the nature of the sanction will be AND
Cant sanction a rep. party for making a legal mistake AND
Type of sanction should be least restrictive to deter behavior AND
Least favorable sanction is monetary award to the parties bringing the sanction

Responding to Complaint
Default Rule 55
Protest default 47b
Rule 12(b) Motion to Dismiss
(1) no smj
(2) no pj
(3) improper venue
(4) insufficient process
(5) insufficient service of process (something wrong w/ what you were served with)
(6) D’s file a 12(b)(6) Motion: Assumes all the P’s facts are true, but says that the law still doesn’t grant relief based on those facts.
(Even if what P says is true, no legal right to relief)
* For purposes of the motion only, we assume P’s facts are true.
(7) Failure to Join a Party under Rule 19
Waiver of Defenses : 4 12b defenses waived if not stated in D’s first complaint
Pj, venue, form of process, method of service *MUST raise in 1st communication with court

Answer Rule 8b
Admit, deny insufficient knowledge, admitted if not explicitly denied in resp. pleading
Affirmative Defense 8(c)

Amend pleadings Rule 15

Once freely within 21 days of serving, highlight these things
Otherwise parties have to agree
OR when justice so requires:
What factors do cts consider: undue delay, bad faith, futility, prejudice
How to decide if amendment relates bback to get around SOL 15c
Notice to D and timing of the litigation- Moore v Baker ,
Relates Back 15(c)

Discovery
Scope Rule 26 a, 26 b
Required and General
Use devices – all on parties
Non parties- for any but deposition you need subpoena first
Can get anything rel. to a parties claim or defense
Excluded?
Priviledged communications
Trial Prep materials ( 3 types: fact work product opinion work product and __ )
Reasons to withhold discovery protective order under 26c- annoyance emb. Oppression, undue expense. Kalin. Case
Discovery of experts 26a2 must disclose identity,
Can dipose ds testifying expert, In contrast to Consulting expert

Stages of Discovery16(b)- Scheduling

26(a)(1) (C-E) Time limits, basis, unacceptable excuses
26(d) timing/ sequence
26 (e1) Supplementing Disclosures resp.
26(f) Conference of Parties

Methods for Discovery

30a Depositions
33 Interrogatories
34 Production of Info, Objects, land access
35 Phys/ Mental Exams
36 Request for Admission
37 Sanctions
45Subpoenas
Unlike the other discovery methods, Depositions are available for parties AND nonparties Discovery methods can only be used on parties. If
you want any of this from a nonparty the court had to issue a subpoena for the information.

Experts 26(a)(2), 26 (b)(4)

Fact witness expert and those hired particularly for lawsuit

Compliance
26 (e) (1) Supplementing or correcting a disclosure or response
30(g) Failure to attend a Depo. Or serve a Subpoena, Expenses
Rule 37 establishes a system of sanctions for parties violating more specific obligations.

RES W/O TRIAL

Default judgement 55 entered by clerk, must be converted to judgment
Vol. Dismissal 41a1
41a2
Invol Dismissal 41b
Involuntary Dismissal v. Default Judgement:
 Judge can’t initiate dismissal on its own
 No bright-line time as to when failure to plead is
 Once P brings the lawsuit, you have to be timely in proceeding with it, otherwise the court will throw it out
(analogous to P needing to bring claim within SOL)
Settlement 4 Forms of Settlement Agreement
1. Dispute Phase: Settlement is a contract not to file a complaint. If P files or violates any other terms, D has defense of breach-of-
contract claim+ accord and satisfaction
2. P Files complaint but voluntarily dismisses w/o prejudice 41(a) but agrees not to refile in the settlement contract. breach-of-contract
accord of satisfaction *involves a filed document.
3. P files, vol. dismisses w/ prejudice 41a and agrees not to file claim in settlement agreement. If P refiles- there is claim preclusion and
the D has defense of breach of contract+ accord and satisfaction.
P and D ask Court for a judgement incorporating their settlement agreement into a court orderCONSENT decree – from ct. makes violation of
the settlement agreement a contempt of court
4.
*If exam asks which form of settlement is best, doesn’t want an answer, rather, wants you to analyze the concerns
Confidentiality Reasons to agree: We want to encourage parties to negotiate confidentiality because it encourages party’s to reach
settlement (more settlements, thus more room for trials) and also increases settlement value if conf. is important- so may be in the party’s
best interest.
Reasons not to agree: Public Cost.: Sometimes public interest in having truth come out (Wrong-doers can hide behind bad products and their
behavior doesn’t change)

Summary Judgement 56 Attach Facts in Discovery. OR TO DENY: There is a dispute over relevant material facts.
(c)(2) Has to be admissible under the rules of evidence. (one can discover more than what is admissible at trial).
You need actual facts. “I watched the client sign note on XYZ date, time, manner etc.”)
(c)(6) D can’t say that they can prove material facts are different, They must be able to show the proof with actual facts.
 Burden on the nonmoving part: D has to show p has ABSENCE OF EVIDENCE of their case (celotex) To show absence of evidence
in motion, D Has to go through all P’s discovery documents and show the court why P has an absence of evidence that Celotex caused
death.
o “opponent has to show more than some metaphysical doubt- non-moving party must come forward with specific
facts showing there’s a genuine issue for trial.”
P’s general evidence can’t rebut the D’s specific evidence-

Directed Verdict 50a Standard: “the standard for summary judgement mirrors the standard of directed verdict”- same standard. Only
difference is that directed verdict/ judgement as a matter of law happens later.
If a credibility issue arises: has to go to jury
But court deals with reasonableness

Difference Between Reasonableness and Credibility

No brightline rule but basic difference is:
Up to jury to determine if witness is telling the truth about what they did see
“and therefore” If inference of what witness saw reasonable up to judge