Mya Almassalha Civil Procedure Outline I. Personal Jurisdiction a. Until 1945 a. Pennoyer v. Neff PP 61 (1877) Or.

Code provides for constructive service when an action is brought against a non-resident and absent defendant who has property in the state. (62) The Supreme Court held that: The code violated the Due process clause of 14th Amendment 1. Because constructive service was a legal fiction that deprived a defendant of his day in court, and unjustly attached real property that was not directly related to the litigation. y Created In Personam (In Hand) and In Rem (Land) jurisdictions y Initial Exceptions: (66) 1. Personal Status: i.e. Divorce 2. Cases where service had been assented to in advance International Harvester v. KY (TWEN) 1914 y Applied the In Personam rule created in Pannoyer to Corporations. 1. Created the test to determine when or if a corporation is present in the state for the purpose of jurisdiction i. Mere solicitation does not constitute presence ii. There must be continuous and systematic contact with the forum state, but the court is unclear as to exactly what constitutes this. 1. Mere solicitation alone however does not constitute presence. 2. No clear rule Hess v. Pawloski (TWEN) 1927 y Implied consent fiction: The act of driving on the state¶s roads constitutes consent to jurisdiction. Blackmer v. U.S. (TWEN) 1932 y A citizen of the United States receives certain benefits that may be repudiated at anytime. Because of these benefits the citizen owes the U.S. certain duties, including showing up to testify. The court may enjoin his property in an effort to ensure that he meets his obligation. This is another exception to Pannoyer. Milliken v. Meyer (TWEN) 1940 y Applies the same obligations of citizenship established in Blackmer to inter-state citizenship. A citizen of a particular state can be served with service by that state in any other state. Another exception to Pannoyer, Pannoyer is still good law but is being eroded. y







b. After 1945 a. International Shoe v. Washington 1945 PP 77(Over turns Pannoyer, in Rem still good, Notice still good) y Establishes new rules for in personam jurisdiction: 2 new types of jurisdiction. 1. Specific Jurisdiction: i. Minimum Contacts ii. Traditional notions of fair play and substantial justice 2. General Jurisdiction: i. There must be a Continuous and systematic course of business within the state that allows the court to infer that the corporation is physically present within the state. b. McGee v. International Life Insurance 83 1957 y A state court may choose to hear a case if it has a vested interest in protecting the rights of its citizens. ³residents would be at a severe disadvantage if they were forced to follow the insurance company to a distant State in order to hold it legally accountable´ 83 y In personam jurisdiction (specific) may be satisfied if there are bi-lateral or multilateral contacts between the plaintiff and defendant. y Policy issue: protecting the citizens of a state from an unscrupulous insurance company. c. Hanson v. Denckla 83 1958 y Unilateral contacts between the plaintiff and defendant are not enough to satisfy in personam jurisdiction, even if the state has an interest in hearing the case. y There must be sufficient minimum contacts between the defendant and the state to put the defendant on notice that they may have to litigate in that state. d. Shaffer v. Heitner 87 1977 y Eliminates quasi in rem. y Property may not be attached as a basis for establishing jurisdiction unless there is a tie between the property in question and the lawsuit. y Extends the new rules of International Shoe to in Rem Jurisdiction. y Breaks with historical tradition of using quasi in rem as basis for jurisdiction. y (Traditional Notions«) Just because something has been used in the past it doesn¶t mean that it won¶t be overturned as obsolete. e. CME Media Enterprises v. Zelezny (TWEN) 2001 y Exception to quasi in rem result in Shaffer v. Heitner. y Quasi in rem may still be used to attach property when enforcing a judgment from a jurisdiction that had in personam jurisdiction over the defendant. y Negative effects on U.S. banks. Two tests arise in subsequent cases that deal with how courts may establish specific jurisdiction. A. Purposeful availment Test:

Policy consideration: don¶t want people to stop spending money in the state for fear of litigation. the interest of the forum state. are not enough to warrant a State¶s assertion of in personam jurisdiction over a nonresident corporation. 3. had no property in the state. Applies the continuous and systematic business actions rule from International Shoe to establish general jurisdiction over the defendant. v. Policy consideration: will doing this deprive the plaintiffs of a legal remedy by forcing them to litigate in another country? General Jurisdiction I. The unilateral activities of the plaintiff are not enough to create in personam jurisdiction over the defendant. and the plaintiff¶s interest in obtaining relief. B. Applies to people not corporations. (Bringing the car to OK) iii. 2.A. Burnham v. Helicopteros Nacionales de Colombia. Mere purchases even if occurring at regular intervals. Superior Court 126 1990 1. A court should consider the burden on the defendant. 123 1952 1. The defendant¶s own conduct and contacts with the forum state must be substantial enough that he has notice that he may be taken into court in that state. v. III. Reasonableness Test: 1. Merely placing a product in the stream of commerce is not enough to establish jurisdiction. S. The court still has general jurisdiction even though the primary business of the company was not conducted within the state. 2. Hall 124 1983 1. Plurality rather than majority opinion. All elements of the Purposeful Availment and Reasonableness tests are inferred to apply because of the defendant¶s presence in the state. Perkins v. iii. ii. This should have a significant weight in establishing jurisdiction. even if it is reasonable to assume that the product may at some point have contact with the forum state. v. Superior Court 105 1987 i. Benguet Consolidated Mining Co. Asahi Metal Industry Co. 3. Woodson 96 1980 i. and the company was not incorporated in the state. Applies the same rule from Perkins but finds no jurisdiction. There are serious burdens placed on an alien defendant to litigate a case in a foreign court. A court has general jurisdiction over any defendant served with process in the state. II. World-Wide Volkswagen Corp. i. Specific Jurisdiction 4 .1. 10708 ii. 2.

and might discourage companies from contracting to work. Policy issue: not enforcing forum selection clauses is bad for business. The defendant availed himself of the laws and protections of FL. v. Rudzewicz 111 1985 i. ii. The very act of the intentional tort implies purposeful availement. iii. iii. 2. y Unintentional Torts 1. See WWV & Asahi 2. Keeton v. Calder v.y Contracts 4. ii. There was no fraud 2. Harm is suffered within the state. That has effects within the state 3. Burger King Corp. Other Issues y Litigation Clauses (Consent) 1. Single Publication Rule: can recover in one state for damages suffered in all states. There was a continuous long term agreement between the companies. There was no overreaching 3. In entering into the franchise agreement with Burger King. Breman v. though traditionally not enforced. The purposeful avaliment and reasonableness tests are not applied by the courts to intentional torts. Forum Selection clauses. A new test of directed action set forth in Calder is applied instead. They follow the same reasonableness and purposeful availment test as the other cases. Hustler (TWEN) 1984 i. The exception applies to intentional torts only. will be enforced in contracts provided that: 1. In an intentional tort jurisdiction may be established when: 1. 5 . Applies the test of World Wide Volkswagen to this case and establishes jurisdiction. By an act directed at the state 2. Purposeful availment and reasonableness tests apply to unintentional torts 3. Zapata (TWEN) 1972 i. y Intentional Torts 1. 3. ii. It was reasonable and not unjust: does not deprive the plaintiff from a legal remedy. The state has a vested interest in protecting its citizens from untrue statements. and reasonableness. Jones (TWEN) 1984 i.

Another example of the sliding scale of jurisdiction. who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and. engaging in. 2. ³The argument that « (forum selection) clauses are improper because they tend to oust a court of jurisdiction is nothing more than a vestigial legal fiction. 2.y y iii. iii. Forcing the Cruise Line to litigate the case in Washington would open the door to other lawsuits in other even more distant and unreasonable forums and places a large burden on the company. Carnival Cruise Lines v. Shute 135 1991 i. sliding scale of establishing jurisdiction over websites. L. or risk located within this state at the time of v. (c) Owning.L. whether or not a citizen or resident of this state.L. Internet 1. Superior Court 117 2002 i. (b) Committing a tortious act within this state. Gives an example of an active site. CA: A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States i. Long-arm Statutes: state statutes detailing the individual state¶s procedure for exerting personal jurisdiction. conducting. or carrying on a business or business venture in this state or having an office or agency in this state. 6 . We examined three long arm statutes: 1. ii. property. 1. Prices may be increased. Passive v. his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts: (a) Operating. Gator. In order to be constitutional the long arm statutes must comply with the standards of International Shoe. ii. (d) Contracting to insure any person. Applies the rule of Breman to a contract of adhesion. Bean can be inferred to have a virtual store in the state. ii. Bean (TWEN) 2003 i. FL: 1) Any person. There is directed action from the site towards the forum state. using. possessing. It « rests at core on historical judicial resistance to any attempt to reduce the power and business of a particular court«´ 2. Creates confusion as to where suits may be brought. if he or she is a natural person. where there is no directed action from the site to the forum state. Pavlovich v. so much so that L. Active websites. Gives an example of a passive site. or holding a mortgage or other lien on any real property within this state.

is subject to the jurisdiction of the courts of this state. (4) If a defendant in his or her pleadings demands affirmative relief on causes of action unrelated to the transaction forming the basis of the plaintiff's claim. whether or not the claim arises from that activity. (3) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state. maintaining a matrimonial domicile in this state at the time of the commencement of this action or. or otherwise. MI : 1. or use. or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents. the defendant shall thereafter in that action be subject to the jurisdiction of the court for any cause of action. whether such activity is wholly interstate. or things processed. This paragraph does not change the residency requirement for filing an action for dissolution of marriage. engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived. The defendant was engaged in solicitation or service activities within this state. regardless of its basis. at or about the time of the injury. serviced. or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce. whether cohabiting during that time or not. Sec. child support. (5) Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereinafter provided by law. trade. (h) With respect to a proceeding for paternity.194. (2) A defendant who is engaged in substantial and not isolated activity within this state. (g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state. (f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state. if. 701. intrastate.(e) With respect to a proceeding for alimony. 48. if the defendant resided in this state preceding the commencement of the action. ii. which the plaintiff may by amendment assert against the defendant. materials. Products. The service shall have the same effect as if it had been personally served within this state. as provided in s. either 1. The existence of any of the following relationships between an individual and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise general personal jurisdiction over the individual or 7 . or 2.

to the extent authorized by the consent and subject to the limitations provided in section 745. (2) Domicile in the state at the time when process is served. (3) The carrying on of a continuous and systematic part of its general business within the state. child support. Sec. or having its principal place of business within this state. separate maintenance. 711. 711. Sec. property. trustee. (1) Incorporation under the laws of this state. Sec. (2) Consent. in the state resulting in an action for tort. or risk located within this state at the time of contracting. (5) Entering into a contract for services to be rendered or for materials to be furnished in the state by the defendant. property settlement. The existence of any of the following relationships between a corporation and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise general personal jurisdiction over the corporation and to enable such courts to render personal judgments against the corporation. use. alimony. or consequences to occur. (1) Presence in the state at the time when process is served. 3. to the extent authorized by the consent and subject to the limitations provided in section 745. or other officer of a corporation incorporated under the laws of. The existence of any of the following relationships between a corporation and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise general personal jurisdiction over the corporation 8 . The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships: (1) The transaction of any business within the state. 4. manager. (4) Contracting to insure a person. 2.his representative and to enable such courts to render personal judgments against the individual or representative. or child custody. (3) Consent. (7) Maintaining a domicile in this state while subject to a marital or family relationship which is the basis of the claim for divorce. 705. (3) The ownership. or possession of real or tangible personal property situated within the state. (6) Acting as a director. (2) The doing or causing an act to be done.

9 . 725 or 735 [FN1] constitute the basis of jurisdiction of a defendant. territory. (c) The agreement as to the place of the action is not obtained by misrepresentation. he may tax as costs in the case his reasonable expense in procuring the bond furnished. (2) Consent. on such defendant's motion the court shall require the plaintiff to post a bond to such defendant with 2 or more sureties to be approved by the judge or clerk of court. a court of this state shall entertain the action if all the following occur: (a) The court has power under the law of this state to entertain the action. (b) The plaintiff cannot secure effective relief in the other state for reasons other than delay in bringing the action. as appropriate. and any state. so much of the penalty of said bond as may be required shall be applied to the satisfaction of any judgment for court costs and to defray the actual expenses of such defendant incurred in defending the action (but not to include attorney's fees). 5. 715. Sec. [FN1] (3) The carrying on of a continuous and systematic part of its general business within the state. district. Sec. commonwealth. 6. the court shall dismiss or stay the action. (3) If the parties agreed in writing that an action on a controversy shall be brought only in another state and it is brought in a court of this state. (b) This state is a reasonably convenient place for the trial of the action. (2) If the parties agreed in writing that an action on a controversy may be brought in this state and the agreement provides the only basis for the exercise of jurisdiction. unless any of the following occur: (a) The court is required by statute to entertain the action. or other unconscionable means. duress. (d) The defendant is served with process as provided by court rules. to the extent authorized by the consent and subject to the limitations provided in section 745. or with a surety company authorized to do business in this state. In all civil actions where sections 705. in the sum to be fixed by the court conditioned that in the event judgment is not rendered in favor of such plaintiff. If plaintiff prevails in the action. "state" means any foreign nation. 745. (1) Incorporation under the laws of this state.and to enable such courts to render personal judgments against the corporation. the abuse of economic power. (1) As used in this section. or insular possession of the United States. 741.

There is at least one federal district per State. The state venue rules are more detailed than the federal venue rules. Sec.S. There are different rules governing contracts and torts. The principle venue rules for federal court may be found in statute 28 U. depending on the cause of action. y For a corporate defendant see 1391(c): a corporate defendant will be found to reside wherever there is personal jurisdiction over him. 7. 751. y For foreign defendants an Alien may be sued in any district. (d) The agreement as to the place of the action is obtained by misrepresentation. 3. The assertion of venue is not always upheld by the court. 751. IV. g. Venue a. duress. This is done at the court¶s discretion and the court may simply dismiss the action. it isn¶t that hard to apply but it is something that a person should be aware of. Sec. Practicality. y For government agencies/employees see 1391(e) y For foreign governments see 1391(f) y Rule 1407 deals with issues of transfer: transfers are done to consolidate litigation into a single area for the sake of efficiency. the court may allow a transfer of venue. 2. (e) It would for some other reason be unfair or unreasonable to enforce the agreement. e. The inquiry as to venue is only approached if the personal jurisdiction issue is satisfied.C. Michigan has unusual rules 10 . The court will look first to see if there is personal jurisdiction in the state. Distance. 8. the abuse of economic power. Burden on the court/jury/parties. The courts of record of this state shall have jurisdiction over land situated within the state whether or not the persons owning or claiming interests therein are subject to the jurisdiction of the courts of this state. y Rule 1631 deals with transfers to state court due to lack of jurisdiction. f. There are many reasons why the court is interested in ensuring reasonableness in enacting venue statutes: 1. see 1391(d): may be sued in any district. b. c. and then will look to see where in the state the action should be brought. d. Transfers are allowed at the court¶s discretion. §§ 1391 1407 1631.(c) The other state would be a substantially less convenient place for the trial of the action than this state. The courts of record of this state shall have jurisdiction over land situated within the state whether or not the persons owning or claiming interests therein are subject to the jurisdiction of the courts of this state. or other unconscionable means.

as an unreasonable covenant will not be enforced. particularly in contracts. if there was no relief granted in the letter of the law then there was no relief. There is now only one court.It will not recognize venue selection clauses if the clause deviates from the standard established in the state statute. 11 . Former employee violated non-competition clause in employment contract by accepting a position with Sigma rival and by providing the rival with information related to Sigma operations. Generally (nothing). judgment actions. this is inherently a pro-defendant rule. but has retained the concept of the court of equity into the court of law. specific performance. The difference between a court of equity and a court of law: y The court of law only provided remedies based on the letter of the law. The main problem that led to the merger was that the equity court overturned many court of law rulings. Sigma Chemical Co. These courts were designed to hear cases where there was no remedy in the common law or if the remedy in law was insufficient. declaratory relief. ii. Court determines that there is a restrictive covenant in the contract. Even if the selection clause was voluntarily agreed to by all parties. Declaratory judgment before an actual breach is not usually given unless there is an actual issue and that there is an important reason why the court should decide to hear the case. There is a three prong test: 1. b. The court must determine if the restrictive covenant is reasonable. The covenant must be reasonably necessary to protect the employer¶s legitimate interest. Preliminary relief: relates to what a court may do for a client before the case is heard. The court of equity awarded other damages i. 3. Types of relief available: y Injunctions: 1. the power of the judge now extends to both types of remedies. These are not common remedies. y The court of equity or chancery was an extension of the king¶s authority. Almost every state has eliminated the equity court. However. The single most important element in getting a hearing in the court of equity was the idea that the court of law failed to provide relief. 2. injunctions. creating conflict between the courts and it created additional redundancy. Remedies a. since money damages are easier to award and monitor. 1. NO CASES y V. These courts have been merged in most states. in some cases there as some pre and post. The typical remedy of a court of law awarded money damages. Harris 285 i. v.e.

The defendant will not be harmed more than plaintiff is helped by the injunction. Attachment: involves the seizure of property. iv. The government will not be required to post a bond. Attachment and garnishment: provide provisional monetary relief. William Inglis & Son Baking Co v. but can last until the actual trial. d. iii. This is an appeal of a request for a preliminary injunction.y 2. The covenant must be reasonable in terms of geographic scope. It is ineffective until the person gets actual notice. i. 3. ii. it is temporary and must explicitly state its expiration date. The covenant must be reasonable in terms of temporal scope. Based on an examination of the covenant the court decides that it is reasonable. The bond rule tends to favor wealthy persons. 3. The law tends to favor a pre-attachment hearing with most of the protections associated with a TRO. Granting the injunction is in the public interest. No constructive notice. i. Temporary Restraining Orders & Preliminary injunctions 1. only a private party is required to post a bond. There are however some instances when the government may act without a hearing: 12 . 2. So the idea would be to get the court to issue a narrow TRO that would lessen the affect of the TRO on the party involved. This can be an attachment of property or a garnishment. The plaintiff will suffer irreparable injury if injunctive relief is not granted. ITT Continental Baking Co. 3. 1. Ex parte: with only one side present. 1. Holding: Harris is enjoined the court issues an injunction prohibiting Harris from conduct that it considers in violation of the restrictive covenant. The plaintiff will probably prevail on the merits c. Holding: remanded to lower court to reexamine based on the test. TRO: can be issued ex parte. A TRO will not be issued without a bond. b. Expedited hearing for the other party if they choose to contest the TRO. 2. The court develops a test for when to issue a preliminary injunction: a. Preliminary Injunction: cannot be issued ex parte. i.

This is important in respect to moveable property. There are questions of due process associated with the seizure of goods since the 5th and 14th amendments prohibit the deprivation of property without due process of law. Action for replevin of personal property seized by Sears because of a disputed debt. 2. Secured creditor is one where a creditor has an interest in a specific property that a person owns.a. Replevin: a common law action. ii. at a time when the deprivation may still be prevented. The law provides special rights to secure creditors where they may take back the property in which they have an interest. State law allowed for authorized seizure of personal property without actual notice and without a hearing. This applies only government actions. UCC §9-503 a secured creditor may take private action against a debtor in default without a violation of the peace. 1. 2. car. i. This mechanism is important because we have a consumer based society. 3. After Fuentes v. Garnishment: involves asking a third party not to pay the defendant money due him because the plaintiff has a claim on said money. because it encourages commerce. 3. The court decides that in order to ensure due process of law adequate notice must be provided prior to the seizure. The main advantage for them is that there is a specific asset they may point to and take back. i. Unsecured creditor there is no collateral pledged for the repayment. Shevin the court may no longer allow replevin without due process. a. ii. c. Fuentes v. If the seizure has been directly necessary to secure an important government or general public interest. There is a special need for prompt action. 4. iii. 2. Even 13 . It is non-state action and as such it doesn¶t violate the 14th amendment. These measures are taken to guarantee relief to the plaintiff and to stop the defendant from disposing of assets. 1. Shevin 322 1. b. where a suit is brought to recover goods that have been wrongfully seized. The first time the defendant hears of the seizure is when the sheriff appears to remove the property. it does not apply to the actions of private parties. iii. house loans. The state has kept strict control over its monopoly of legitimate force.e.

000. If there are strict governmental limits and control over the exercise of legitimate force. If there is a special need for prompt action. These have been interpreted to be the maximum limit on federal judicial power. There was no ability to collect taxes. There must be a check on federal powers. 5. The constitution replaced the articles of confederation. y There was a draw between the federalists and anti-federalists. y The anti-federalists: too much centralized power = tyranny. and that a state court should not be relied on to enforce federal law. History: 1787 and the constitutional convention. ART III of the constitution is illustrative of this draw. 3 routs to federal court y Federal Question § 1331: 1. Sets clear exceptions when seizure may be done without notice: a. and that there should be a strong federal court system. 14 . The action must be between citizens of different states. y Diversity Jurisdiction § 1332 (a)-(c): 1. 2. y Articles of confederation were too weak: a. The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75. 4. State courts should be more powerful as a check for the power of the federal government. VI. or between a US citizen and a Non-US citizen who is not a permanent resident. No centralized executive power. or treaties of the United States. y Prior to the constitution the articles of confederation were the governing rules of U. The court further states that contracts with waiver clauses will not be enforced because a person cannot waive the right to due process and should not be deprived of constitutional rights based on a contract of adhesion where there is limited bargaining power.temporary deprivation is subject to the due process clauses of the US constitution. it creates a judicial branch: federal courts. b. b. No federal court system. If there is an important government or public policy issue. exclusive of interest and costs. The district courts shall have original jurisdiction of all civil actions arising under the Constitution. b. c. Subject Matter Jurisdiction a.S. y The federalists: people who believed in the need for a powerful government. with limits on the cases/controversies that may be heard in Federal courts. laws. c.

Family Law b. b. the court must be in the same district as the state court action. Anti-trust c. 1338. Louisville & Nashville Railroad v. 1333(1). ii. Or the action must involve a foreign state as defined by § 1603. 28 USC § 1331: is the general federal question statute and deals with when cases may be heard in Federal court. the sole remedy would be a state court. or has diversity issues and Federal court would have had original jurisdiction.y 3. Any civil action over which the Federal court has original jurisdiction may include related non-federal claims at the court¶s discretion. IV. If the defense to the claim is based on some Federal law or the Constitution it is not considered to be a federal question. It gives federal courts jurisdiction for cases ³arising under´ the constitution. VI. Questions of federal law include but are not limited to: a. In this case the railroad was basing its assertion of jurisdiction based upon its defense that it did not have to honor its settlement with Mottley due to federal laws prohibiting the issuance of free passes. 28 USC §1331. Supplemental Jurisdiction: § 1367 1. Bankruptcy d. The railroad¶s defense is immaterial to the establishment of jurisdiction. The original complaint must arise under a question of federal law or the constitution. V. Constitution Art. or treaties of the federal government. III. The Supreme Court establishes the Mottley Rule: a suit arises under the Constitution and laws of the United States only when the plaintiff¶s statement of his own cause of action shows that it is based upon those laws or that Constitution. The court held that there was no subject matter jurisdiction because the case did not arise under a Federal question based on the Mottley complaint. State law cases not arising under diversity. A corporate defendant is a citizen of the state where it was incorporated and where it has its primary business operations. i. 4. There is no clear test for establishing when a case ³arises under´ a federal question. any defenses or counterclaims will not provide a reason for removal. III. Mottley 179 a. 1345 I. Federal Question: See U.S. II. a. 15 . Cases that will generally not be heard in Federal court: a. b. The removal petition is filed in federal court not state court. statutes. c. The well pleaded complaint rule: looking at the face of the complaint is the only way to get to Federal court. Other federal laws or statutes A case that does not conform to one of the allowable instances in Art III § 2 may not be heard in federal court. The only way to remove to Federal court is that complaint itself has federal issues. Admiralty b.

It also does not apply when both parties are Non-Citizens. The amount in controversy exceeds $75k Redner v. To ask for dismissal due to lack of subject matter jurisdiction one can invoke rule 12(b)(1) for failing to state a cause of action arising under a federal question. The court will not give a second chance to establish subject matter jurisdiction if it finds that the court lacks jurisdiction initially or if you fail to adequately make your case. Between a US Citizen and a Non US Citizen 1. ii. State Citizenship test: 1. iii. The case was dismissed. Diversity Jurisdiction: See 28 USC §1332(a)-(c) I. This does not apply to permanent residents who are considered citizens of the state in which they reside. the plaintiff must at the outset provide all arguments for why the case should stay in Federal Court. citizens or subjects´ Diversity Jurisdiction is controlled by 28 USC §1332 a. This case is illustrative of the fact that a Federal Court may dismiss for lack of subject matter jurisdiction at any point in the litigation. Moloney Coachbuilders Inc. In order to establish a case in Federal Court. b. b. Sanders 190 a. A foreign State against a US Citizen iv. even though there had been substantial work done on it in Federal Court. or citizen thereof and foreign states. b. and you may be penalized by having to start over in state court. There is a distinction between residence and Citizenship. Where is the person currently domiciled? II. However. International Armor & Limousine v. a. c. Diversity is applicable when: i. III. i. This is made possible by Art III of the constitution which allows causes of action to be brought in Federal court when the ³controversies are between citizens of different states´ and ³between a State. For purposes of a diversity suit a US citizen residing abroad is not considered a citizen of the foreign State. There must be complete diversity of citizenship. This is different from 12(b)(6) which is a failure to state a cause of action upon which relief may be granted. by missing the statute of limitations for filing. which the court does not have subject matter jurisdiction over. (TWEN) a. The case is between citizens of two different states. 16 . A well pleaded complaint may get you into Federal Court but it will not keep you there if there truly is no Federal Question. ii. d. the court. i. upon closer review determined that the issue was in fact about a breach of contract. VIII. 2. An example of a well pleaded complaint. The complaint on the surface appeared to be a suit regarding trademark infringement which is an issue over which the Federal Court has subject matter jurisdiction.VII.

a. Is there an intent to remain indefinitely? The time for measuring diversity is the date on which the complaint if filed in Federal court. Muscle test: where the everyday business activities are conducted. 2. The suit was brought in Federal court alleging diversity. i. VIII. Corporate nerve center test: where the executive and administrative functions are controlled. and the citizenship of each person must be considered. That a suit between a US Citizen and a Resident Alien living in the same state negates diversity. The state where it is incorporated 2. has dual citizenship: 1. VI. That a suit between a Resident Alien and a non-Resident Alien negates diversity because they are both still Aliens. The state where it has its chief place of business. In personal status cases: divorce cases. a. ii. iii. i. This does not apply to corporations i. Probate: is settled based on state law and should be handled in state courts. The existence of a single non-diverse party in the suit will be enough to destroy diversity and the court may dismiss due to lack of subject matter jurisdiction. For purposes of diversity partnerships are considered collections of individuals. Suit between a permanent resident Alien and a Non-US Citizen. a. where any member of the class possess the requisite diversity. What this means: Resident Aliens for purposes of diversity are considered dual citizens. The court held that there was no diversity because even though one person was a resident Alien and had during the course of the litigation obtained US Citizenship for the purposes of diversity both parties were still considered aliens. b. c. 2. 17 . This is true even if the plaintiff has since relocated to a different state. V. a. ii. This fear is negated if both sides of the conflict are citizens of a particular state. Exceptions when diversity does not apply: a. There is an exception for class action suits of over $5mil. because they are both citizens of the same state for purposes of diversity. Or if both sides of the conflict are not US citizens. VII. Two tests: i.IV. This is because the reason for Federal Courts having subject matter jurisdiction in diversity situations is based on the fear that State Courts may be biased towards their own Citizens. b. Farouki 197 a. 1. A corp. Saadeh v.

and they are both suing the same defendant both may sue in Federal Court. In a class action suit. i. ii. Counterclaims may be heard regardless of the amount in controversy so long as they are compulsory. It can dismiss at any point in the litigation where this becomes clear. Amount in controversy rules a. b. In order to determine if there is supplemental jurisdiction the claims must have facts that are common and operative.IX. It also means that diversity is measured at the time the suit is brought and becoming a US citizen during the course of the suit does not create diversity where there is none. at least some members of the class must satisfy the amount in controversy. Is based on attaching a claim that on its own would not have qualified for Federal Court to a claim that does qualify. iv. See FRCP # 13 Supplemental Jurisdiction: See 28 USC §§1367 a. If the claim fails to prove that it will reasonably reach $75k the court will dismiss. i. the value of the TOTAL interest will be used to determine the amount in controversy. If one plaintiff meets the threshold limit and a second plaintiff with the same or similar claim does not. It is very important then no to misrepresent the amount of money in controversy because the court will dismiss at any point in the suit. Novel or complex issue of state law 2. There are some instances where the amount may be aggregated between different claims to make the threshold limit: i. The state claim substantially predominates over the federal issue 3. The district court has dismissed all the claims where there were original jurisdiction and all that is left is the state issue 4. iii. v. 2 plaintiffs with unrelated claims against a single defendant may not aggregate. They have to be so interrelated as to create a single story. iii. In exceptional circumstances there may be other compelling reasons to decline jurisdiction 18 . 1. 1. In order for a case to be heard in Federal Court based on diversity the amount in controversy must reach a threshold of $75k. 4 instances in which supplemental jurisdiction may not be applied: 28 USC § 1367(n) 1. If there are multiple plaintiffs or multiple defendants with a common undivided interest and a single title or right. If the counterclaim is permissive it requires an independent jurisdictional basis. a. This is not a Supreme Court case and so the rules may vary from Jurisdiction to Jurisdiction. A single plaintiff with 2 or more unrelated claims against a single defendant may aggregate. ii. aggregation alone will not work. b.

The Supplemental claim is based on several violations of state law including. An example of where the court does not find in favor of supplemental jurisdiction. Caterpillar satisfied the removal statute of limitations by one day. b. and violations of PR constitution. b. The defendant attempts to allege that there was a novel and complex issue of state law and that the state claim should be sent to state court. PR state claims substantially dominate over the federal claims. Other Jurisdictional Issues: I. It is an issue of PR law which has not yet been addressed by PR courts Novel Issue of law. Caterpiller. Szendre-Ramos v. This is because Lewis settled with one of the other parties to the suit who was domiciled in the same state as Lewis. . v. Art. The original complaint is based on a Federal question related to the Truth in Lending act. First Bancorp 209 a. c. a. Removal USC § 1441: defendants may request that an action be removed from State to Federal court. The supplemental jurisdiction complaint is based on State law to void her mortgage. 2. Inc. Lewis 215 USC § 1447 i. d. b. ii. ii. Lewis moved to have the case sent back to State court. because another plaintiff (Liberty Mutual) had yet to settle its claims against the other party that Lewis had settled with and as such that party was still a defendant and diversity did not apply. It alleges that Ameriquest violated the act when they misrepresented facts to her regarding the mortgage she obtained from them. The court elects not to hear the supplemental cases for 2 reasons. c. Mortgage Lending Practices Litigation. a. As long as there is a close relationship between the claims then they are part of the same case. In re Ameriquest Mortgage Co. but the Court does not agree. 19 c. 1 it notifies the plaintiff to stop the action in state court. a. d. allows for a distinction between claims/ controversies and cases. The Federal Claim is based on violations of Federal Employment laws. 3 prohibits cases that lack a federal issue element from being brought they don¶t prohibit non-federal issues of being attached to issues of federal law in the same case. defamation and tortious interference with contracts. The court states: supplemental jurisdiction may be applied based on a loose factual connection so long as those facts are common and operative to both claims. 30 day window to file a motion for removal.The separation of powers in the constitution. it is important to pay close attention to the date of the filing. wrongful discharge. 1. The court refused Lewis¶s argument and Lewis was forced to litigate in Federal Court and lost. The court holds that it cannot address one claim without addressing the other and as such supplemental jurisdiction applies. 207 a. Caterpillar moves to remove to Federal Court based on diversity. Caterpillar alleges that the settlement makes the case removable. Art 3. If the federal court accepts jurisdiction it does two things. i. i. and then it notifies the state court that the action has been removed. e. Initial action brought in state court by Lewis against Caterpiller. d.

VII. a. Most of the time this is not so simple. can also be part of the pleading. there was no misconduct because there was diversity in the end. The case went to Supreme Court and the Supreme Court is deciding whether the initial misjudgment still burden the case? (Or) Is the misjudgment overcome by the subsequent dismissal of the non-diverse party at a later date. 11. at the outset of a lawsuit we don¶t expect the plaintiff to know everything. 10. II. Concurrent Jurisdiction: means that the plaintiff may bring the action in either state or federal court. 20 . followed by the answer. There must be a good faith basis for the allegation. Funnel example. ii. Caterpillar¶s argument: is that diversity would have applied once Liberty Mutual settled with the other party and that although they removed to Federal Court too early. things get narrowed down. c. The limitations on subject matter jurisdiction do not generally apply to the state courts. It also stated in response to Lewis¶s objections that Federal Judges and Attorneys are well versed in the rules and as such its decision does not set a bad precedent. 28 USC § 1445: forbids the removal of some actions that would otherwise be removable under § 1441. when Liberty Mutual Settled with them? i. The Supreme Court sides with Caterpillar against the arguments of Lewis. and moves through filters that may cause the case to be dismissed. Pleadings See FRCP # 4. stating that although the court initially erred there was still diversity at the end. Lewis appealed an on appeal the appeals court. counter claims. i. 8. because the court is sure that the rules will be correctly applied in the future. y Notice pleading: shift in American law. found that the district court had mistakenly allowed diversity jurisdiction where it did not apply. 12 a. third party complaints. ii. The state court has a broader scope of inquiry than the federal courts and can hear cases on more issues. Pleading is a set of documents the first of which is the complaint. 9. This is a result of the compromise between the federalists and anti-federalists. There are some instances where federal courts will provide the sole remedy and if that is the case then the suit may only be brought in Federal court. i. b. i. 3. b. 7. Lewis¶s argument: that Liberty Mutual¶s settlement would have occurred after the statute of limitations ran out and as such Caterpillar would have been unable to remove to Federal court.

105) i. Duress. Alleges enough facts that upon reading will make a reasonable person angry avoid using excessive adjectives. 1. The claim has been discharged. case of fraud. See Rule 8. Stating something like: by reasonable belief. 3. Waiver procedure of rule 4. Close look at Rules 8 & 9.e. There are also penalties if 21 . Complaint: In the complaint you should provide a reasonable amount of information. If you have an affirmative defense you must state it clearly in your answer or it may be waived. failure of consideration ii. This allows you to give the judge more information about the case. The burden of proof is on the defendant to prove this defense. and when the defendant gets it they¶ve been served. Pleading Special Matters details particular situations when more detailed information is required i. 2. arbitration and award. (See rule 4) (Michigan rule 2. Generally 3 categories i. Then the complaint and summons are forwarded to the defendant. 120 days to complete service. iii. payment. Category 2: Torts 1. This is something that the defendant bears the burden of proof. 1. so long as it sent via certified mail with a return receipt request. and it answers more questions than it rises. Category 1: Breach of Contract: 1. more than just the bare bones that are required by rule 10. If you are not 100% sure about something you may make reasonable inferences. The facts should be arranged in such a way that it leads to a conclusion but does not exaggerate. Rule 9. and the defendant has the burden of proof. Contributory negligence. the clerk will give you a stamped authorized summons. Michigan allows the mailing of the complaint.c is that these defenses are the only ones considered an affirmative defense. 1. No wasting the court¶s time. ii. Some actions require more information than others.c answer. you mail the process to the defendant with a waiver. These are generally complete defenses to the action and can cause it to be easily dismissed. or they are waived. release iii. 2.y y y 1. After filing a complaint. Category 3: the we¶ve already taken care of this category« 1. conditions precedent. if the defendant consents to the waiver they are entitled to extra time to file the answer. statute of limitations. Affirmative defenses: have to be raised at the beginning. so long as you indicate that you are not 100% backed up by fact. The importance of the list in 8. i.

i. 1. Or because they know they are wrong and unlikely to win and choose not to waste resources on an attorney. According to Rule 8(b)(6) any allegation not denied is considered admitted. 1. Defendants default generally for three reasons: 1. 3. No waiver in Michigan. 3. Rule 9 provides the framework for when the defendant must provide additional information in the answer or in the affirmative defense that forces you to identify exactly what was said or done and why it should be considered. Controlled by Rule 12(b). Denial: Rule 8(b) requires that the defendant deny only those allegations they actually disputes. Instead of answering the defendant also has the option to do nothing. 2. 3.y y you receive the process in the mail and then refuse the waiver.  Can¶t serve international defendants in the same way as domestic defendants  There are constitutional limits on the service of process. The defendant must respond to all factual allegations. Being reasonable at the outset makes a good impression on the judge. Rule 11 governs the conduct of the lawyer in a proceeding. It asks the plaintiff to clarify his claims. It is a very bad idea to break this rule. Answer: The answer will allege one of three things: Denial. Admit. Motion for a more Definite Statement: 12(e) it is rarely and almost never successfully invoked because of the discovery rules and because if the claim is truly that vague it will be subject to a 12(b)(6) first. Rule 12 motions delay the need for the defendant to answer and it delays the next stage of the litigation. Lack of resources 2. Failure to identify a meritorious defense. 22 . i. Motion for Judgment on the Pleadings: 12(c) this is granted when the court thinks that the law is clear and that further development of the facts would not assist in deciding the case. Motion to strike: 12(f) challenge a part of a pleading that fails under the substantive law. or Defense. It forces the removal of irrelevant and prejudicial allegations in a pleading. the court may force you to pay the fees of the process service. 4. 2. Pre-answer motion: is a request that the court take some action regarding the lawsuit. and thus default. even though the rest of the pleading states a claim or a defense.

Demand for judgment for the relief sought. 2. A pleading that states a claim for relief must contain: i. Put in your due diligence. Rule 8: Claim for Relief 1. procedures. Short and plain statement of the claim showing that the pleader is entitled to relief. and sanctions. b. which affects the conduct of litigation. iii.y y y y 1. The court will generally allow it where is no prejudice: the longer the case has been in litigation the more likely it is that the court will find that an amendment will be prejudicial. In the cases where additional disclosure is required the party making the allegation must disclose particular facts to support their allegations. It regulates the way Lawyers and clients must conduct themselves in establishing standards for investigation of law and facts. parties may seek to change their stories and as such they have to request that the court allow them to amend their complaints/answers. Cases: y 23 . Amendments: Rule 15. An allegation of jurisdiction. i. ii. Deals with the short and plain statement requirement of rule 8 and the additional incidents where more information is needed listed in rule 9. The court assumes that in Fraud cases that the alleging party would have specific information related to the fraud at the outset of the litigation and so has more stringent rules than those or rule 8. It is a procedural rule of professional conduct. Generally careful lawyers will reply to all new matters to void any possible inadvertent admission. ii. If the answer contains a counterclaim that is an affirmative defense then a reply is not technically required. 2. i. The lawyer has a duty to conduct a good faith investigation: make sure that you check prior to filing a law suit the claims that you are making. 1. 1. It establishes an interlocking set of standards. the degree of diligence depends on the locale. In this case Twombly made allegations of price fixing and conspiracy against power companies in an effort to create and sustain local monopolies. Reply: Rule 7(a)(3) requires a reply if the answer contains a counterclaim that is labeled as a counterclaim. Punishment imposed on lawyers for wasting the court¶s time and or showing a lack of respect for the court and its processes. 9(b). These instances are usually related to allegations of a personal nature against one of the parties such as fraud. Rule 9: in some specific instances additional information may be required. 1. v. 3. ii. Twombly 359 1. Bell Atlantic Corp.

Deals with FRCP #9 which requires additional information when accusing a person of Fraud. 2. The court held that although heightened fact pleading is not required for this type of case. 12(b)(6) Stradford v. i. Deals with an instance where the court erred in requiring heightened evidence in the initial complaint when the allegations made were not among the ones listed in rule 9. Demonstrates an instance of when rule 11 sanctions may be imposed and who they are imposed against. The rule requires the disclosure of the time. 377 1. ii. iii. i. Leave to amend is covered under rule 56(b). Dismissed under Rule 12 (b)(6) for failing to state a claim upon which relief may be granted. place. i. ii. On appeal the court held that based on FRCP #8 all that was required was a short and plain statement. it decides that failure to exhaust administrative remedies in the Prison is not an affirmative defense since it is not listed as one of the affirmative defenses in the FRCP 8(c).y y y 3. Jones v. 365 1. As a second issue. If the defense made is not on the list of affirmative defenses in the FRCP then it is not considered an affirmative defense. The Supreme Court reversed the Court of Appeals and dismissed for failure to state a claim on which relief may be granted. Zurich Insurance Co. The court decides that if the allegation is not one covered under rule 9 it must fall under 8. i. The Supreme Court is now examining the standard of pleading in Antitrust and Conspiracy cases. Rather than dismiss. Norwest Corp. 2. 1. i. Block 370 1. and nature of the misrepresentations leading to the fraud. Walker v. Zurich failed to disclose specific information regarding the allegations of fraud. 24 . there needs to be some evidence of more than parallel conduct to support the allegation of conspiracy. by providing factual support for the allegations. The case was initially dismissed because Twombly failed to make a definitive claim of conspiracy. the court gave Zurich leave to amend the complaint to include the specific instances related to the allegations of fraud. which requires only a short and plain statement.

i. 2. The court imposed a rule 11 sanction on the attorney for Christian due to misconduct in the proceeding. and can include being made to pay the legal fees of the other party. written motions. i. This is a personal injury case. it is imposed against the attorney. 1. i. asking for damages due to injuries sustained in the course of employment as a result of a collision between two motorized fork-lifts. For tossing the Barbie heads across the room iii. was sloppy. 2. It does not authorize sanctions for discovery abuses or misstatements in oral presentations. 3. In this case the attorney failed to amend. 4. Mattell. and other papers that have been signed and filed in a given case. 393 1. and conduct in litigation. The court imposed a rule 11 sanction because the attorney failed to follow through in conducting a proper investigation. and not diligent. iv. The appeals court overturned the rule 11 sanction because although. ii. Compliance with the rule requires that defendant file a more specific answer than a general denial. Inc. Demonstrates an instance of when rule 11 sanctions are overturned due to an abuse of discretion.y y 2. A specific denial of parts of complaint and specific admissions of other parts would have warned the plaintiff that he had sued the wrong defendant. when he was given notice of the lack of diversity by the opposing side. Philadelphia Piers. For becoming rude and belligerent to his client and to the opposing side. the attorney did make some rule 11 violations in failing to investigate adequately. 3. Christian v. Rule 11 sanctions are given for misconduct regarding pleadings. Zielinski v. Choosing to impose a rule 11 sanction is discretionary. 25 . For failing to conduct an adequate investigation into the truth of the allegations made against Mattell. The issue in this case is that the answer of the defendant contains ineffective denials of part of the complaint which deals with who owned and operated the fork-lift. He failed to withdraw the complaint within the 21 day window after being presented with evidence that there was no copyright infringement. or drop litigation based on a lack of complete diversity. Inc 381 1. the court incorrectly looked at abuses and misconduct that fell outside the scope of rule 11 sanctions such as discovery abuses. misstatements.

3. As a result the defendant may not use an affirmative defense. Because of this failure the plaintiff was deprived of his right of action against the correct defendant. because the issue raised was an issue of substantial material fact which if resolved in favor of the defendant would exonerate defendant from liability. 26 . The court granted that motion also subject to rule 42(b). 1. because they failed to state it at the outset of the litigation. Beeck v. Aquaslide µN¶ Dive Corp. Defendant alleges that Plaintiff is prohibited from adding to the complaint based on the statute of limitations which had since run out. Aquaslide then requested a separate trial to determine who manufactured the slide.y y 2. 5. Defendant is equitably estopped from denying agency because of its inaccurate statements since the statute of limitations has run and prohibits the plaintiff from bringing suit against the correct defendant. The consequence of this action is that the court allows the plaintiff to continue his suit against the defendant. Aquaslide initially believed that it did manufacture the slide. The burden is on the opposing party to show that there will be prejudice towards them if the court grants the amendment. The court rejected the contention of Beeck that allowing the amendment would kill the litigation because of the statute of limitations. Leave to amend is controlled by FRCP #15 (a)(2) a party may amend its pleading only with the opposing party¶s written consent or the court¶s leave. The court should freely give leave when justice so requires. Personal injury claim against Aquaslide as the manufacturer of the model that caused the injury of the plaintiff. The court gave leave to amend the pleading because it found that there had been no misconduct on the part of Aquaslide and that it would be unduly prejudicial against them to not allow the amendment. 2. i. 3. 403 1. ii. Baker 409 1. i. The initial complaint alleged only violations of informed consent. Issue: Aquaslide is requesting leave to amend its answer to include a statement that it was not the maker of the slide. 3. but subsequently discovered that it did not. 2. even though they one would apply. Plaintiff seeks leave to amend complaint to allege a lack of informed consent as well as negligence on the part of the defendant in the performance of the surgery and during the post-operative care of the Plaintiff. Moore v. ii. 4.

y The court in Pennoyer made it clear that in order to have an in personam and in rem action the parties must be given some sort of notice of litigation. and unskillfully preformed. Plaintiff contends that rehabilitation and counseling care was negligently. In this particular case the allegation of negligence is not related to the allegation of lack of informed consent. the Plaintiff made a motion to substitute new counsel. The Plaintiff claims that he was compelled to play basketball on the court as part of mandatory rehabilitation and counseling prescribed during the course of his rehabilitation program. transaction. because the two issues arose at different points of the surgery and there was nothing in the original complaint to suggest any sort of negligence claim. i. 2. Notice: goes back to Pennoyer v. Plaintiff contends that they aren¶t barred by the statute of limitations due to Rule 15 (c) which states that the amended complaint relates back to the date of the original complaint. Damages requested for personal injury when plaintiff slipped and fell while playing basketball on defendant¶s basketball court. 2. or occurrence set out in the original pleading. or occurrence as the claims in the original complaint. Neff. For in personam the court concluded that in hand service of notice was needed. it only applies when the amendment asserts a claim or defense that arose out of the conduct transaction. Within the limits of rule 15(c) that the claim arise out of the same conduct.4. 1. The Plaintiff then moved to add a new cause of action for counseling malpractice to the suit. 1. The issue of notice was further expanded by the court in the wake of International Shoe: 27 . i. and that the discovery period had not expired so there would not be undue prejudice or an additional burden placed on the defendant. carelessly. i. The court states that while this is true. Plaintiff claims the basketball court was negligently maintained by defendant. 1. Carson Foundation 411 1. 3. The new claim does not arise out of the same conduct. Federal Claim based on diversity. Richard J. y Bonerb v. b. During the course of litigation. In rem actions constructive notice could be used. ii. A secondary issue in Pennoyer was what type of notice of a suit was necessary. Based on rule 15(a)(2) the court should freely give leave when justice so requires it. transaction. The court holds the Plaintiff is allowed to amend complaint because the initial charge included a claim of negligence. or occurrence as the claims in the original complaint.

ii. 1. Since there are many members of the trust. (D) state the time within which the defendant must appear and defend. and the suit claimed that the constructive notice violated the due process clause of the 5th and 14th Amendments. The suit involved constructive notice to members of a particular trust regarding possible misconduct in managing the trust. (1950) 141 1. 12 y Rule 4: details what a summons must entail. (6) an answer to a third-party complaint. (as in real property actions). 6. and 7. As such the court holds that the way notice was served did not violate the due process clause. 4. 2. then they should be given in hand notice. FRCP Sections: 4. 10. Not all the members of the trust were notified of the action. in this particular case asking the trust to identify all possible beneficiaries would have been expensive and burdensome and would have encouraged banks to stop administering such trusts. The court disagreed stating: i. 2. 4. (G) bear the court's seal.Mullane v. iii. 2. 3. 9. c. (B) be directed to the defendant. (A) name the court and the parties. 5. and as such keep an eye on the trust. (C) state the name and address of the plaintiff's attorney or--if unrepresented--of the plaintiff. y Rule 8: pleadings must state a claim for relief and contain: y 28 . 3. iv. Central Hanover Bank & Trust Co. (3) an answer to a counterclaim designated as a counterclaim. 3. (7) if the court orders one. 6. However. There is also an assumption that the beneficiaries should be aware of their possible interest. In hand notice is always best. 7. When the parties are certain. (5) a third-party complaint. (2) an answer to a complaint. This case clarified the notice requirement established in Pennoyer. and 7. (4) an answer to a crossclaim. 5. 8. 11. the court feels that those members in protecting their own interests will act to protect the interest of the other beneficiaries. (1) a complaint. y Rule 7: details the type of pleadings allowed: 1. (F) be signed by the clerk. (E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint. 4. 5. a reply to an answer.

xvii. estoppel. v. assumption of risk. xiii. It also establishes a signature requirement for all filed documents. vii. Rule 10: details what each pleading must contain: 1. unless the court already has jurisdiction and the claim needs no new jurisdictional support. xviii. It also discusses affirmative defenses and when they may be brought. laches. may refer generally to other parties. Every pleading must have a caption with the court's name. contributory negligence. (3) a demand for the relief sought. xii. xvi. and xix. (2) a short and plain statement of the claim showing that the pleader is entitled to relief. These must be brought at the beginning of the suit and constitute a complete defense to a claim if accepted by the court. duress. This rule applies after subject matter jurisdiction has been satisfied. Rule 11: deals with violations of pleading rules. iii. the title of other pleadings. after naming the first party on each side. each limited as far as practicable to a single set of circumstances. ix. illegality.y y y 29 1. 2. If doing so would promote clarity. xi. which may include relief in the alternative or different types of relief. There are 19 listed defenses. release. or a counterclaim as a defense. if justice requires. payment. xv. arbitration and award. injury by fellow servant. NOTE: If a party mistakenly designates a defense as a counterclaim. iv. A later pleading may refer by number to a paragraph in an earlier pleading. the court must. a file number. and a Rule 7(a) designation. 2. fraud. and 3. The title of the complaint must name all the parties. statute of frauds. failure of consideration. xiv. vi. waiver. each claim founded on a separate transaction or occurrence--and each defense other than a denial--must be stated in a separate count or defense. 4. These documents must bear the signature of . license. ii. a title. and may impose terms for doing so. A party must state its claims or defenses in numbered paragraphs. (1) a short and plain statement of the grounds for the court's jurisdiction. treat the pleading as though it were correctly designated. res judicata. viii. x. i. accord and satisfaction. Rule 9: the pleading does not need to allege the capacity of a party to sue or be sued. discharge in bankruptcy. statute of limitations.

or if the client is abused. Must send a request to the other side notifying them of the place and time and person. The deposition may also be recorded. Find out general information about the other side. These motions delay the time for processing the claims. The other side¶s attorney may prepare their client for the 30 . 1. paid for by party taking the deposition. Discovery tools: y Interrogatories: Rule 33 questions asked by one side¶s attorney to the other side¶s attorney. Doctor Patient 3. b. 36. Limit of 25 questions without leave of the court. Must be recorded: transcript by court reporter. Bases for damage calculations. They may be sent only to the parties in the actual litigation. Discovery: See FRCP # 16. See above notes Rule 12: deals with pre-answer motions and with answers. 34. 35. There are several types of pre-answer motions that may be filed. 37 a. Attorney Client iii. only if the rules are broken. this power is backed by court-imposed sanctions. and extend the time which the attorney has before filing an answer with the court. See above notes. y Oral Depositions: Rule 30 & 45 take place under oath and are the unfiltered answers of the party. The existence of documents 3. 1. Names of witnesses 2. Even if relevant the requested information may be protected. y Rule 26(a)(1) requires a party to reveal to the other party certain basic information supporting that party¶s claims or defenses. outweigh its value. It requires that the attorney verify that the claim is non-frivolous before filing the complaint or an answer. Unlike interrogatories and depositions there are no limits to how many documents may be requested. VIII. 26. Discovery typically occurs only after the pleadings are closed. Discovery is the legal mechanism for unearthing information. Parties may discover only evidence that is relevant to a claim or defense. oppression or undue burden or expense. i. embarrassment. Unprivileged information may be undiscoverable if a party can convince a court that its potential for annoyance. Rules 26-37 & 45 give parties broad power of investigation. y Doc. 2. The discovery rules compel the parties and others involved in a lawsuit to cooperate in the unearthing of factual background. 32. 30. Privileges against self-incrimination ii.y the attorney who is submitting them. a. y Rule 26 (b)(2) & 26(c) provide three restrictions that limit what may be discoverable by the other side. The other side¶s attorney is present there and may interject. who were the parties involved. what documents to they have. Requests: Rule 34 & 45(a)(1) (A)(iii)produce information and records requested by the other party.

It is only applicable to the current suit. and the case may be dismissed or may be ruled against you. This is not the case for interrogatories because the jury may speculate against it. If the party makes an admission and wants to back out of it. They may explain how the process works. Perhaps introduce the idea that the expert is one who will give his testimony for anything. No court is going to require that the person submit to the exam. Limits: 1. when the testimonies of the persons or documents you need are the possession or custody of a non-party to the suit. 31 . Expert Witnesses y Since the discovery rules allow requests for information about expert testimony. No deposition may exceed a day of seven hours. the judge instructs the jury that the following facts are reality and the jury may not speculate on it and the attorneys cannot ask questions about it. y Requests for Admission: Rule 36. No person may be deposed a second time without the permission of the court or the other side. and does not apply to any subsequent litigation and it is very hard to change it.e. 2. that they are under oath. Inform/educate ii. medical malpractice case. Lay ground for impeaching a witness y Physical exams: Rule 35.deposition. y The idea is to undercut the effectiveness of the testimony of the expert. d. Exhaust recollection iii. c. this allows the other side to find out information about the expert which allows you to discredit or impeach his testimony i. and is filtered through a party. 3. and also to the extent of the damages. Total number of depositions may not exceed 10. looking at the injuries suffered to prove that they damage was related to the cause of action. common in tort cases. and that they need to think before they answer the question(s). if they don¶t the jury may be notified of this failure. It takes an entire subject off the table. Close avenues iv. asks the person to admit the truth of a particular subject« the following is true« it also may only be served on a party. Can only be requested of parties to the suit and not of non-parties. Abuses of discovery: y Too little discovery y Too much discovery y Destruction of evidence These violations may make the party subject to Rule 37 sanctions. Must show good cause before such a request can be made. y Subpoena: rule 45. It is not so much as a way to discover evidence as it is a way to make discovering the evidence irrelevant. Purpose of a depositions i.

bridge example. Congress will force the attorney to do a minimum amount of work on a particular case at the outset. See Hickman v. y Attorney client privilege is generally not discoverable. a. this is done to protect the relationship between the attorney and the client. and it varies in scope from state to state. Rule 26 (a) (3) each party must disclose lists of witnesses and documents or exhibits it intends to produce at trial. Rule 26 (a)(2) requires the parties to disclose the identity of any expert witnesses and accompany that disclosure with the expert¶s written report and a list of information about the expert.The rules for impeachment vary somewhat from court to court. Rule 26 only requires notice of the testifying witnesses not the consultant witnesses. so the court may allow testimony in that relates directly to the cause of action and less likely to allow testimony that has little to do with the case at bar. This is state law. b. Rule 26 (a) requires the parties to exchange categories of information that the disclosing party will use to support is claims or defenses. c. this will reduce the amount of litigation that actually goes to trial or settle on the eve of the trial. g. b. y That information includes the names and locations of witnesses and descriptions and location of documents. Work Product: y Attorney work product: anything produced by an attorney in anticipation of the litigation or during the litigation. An expert witness gives facts that are beyond the knowledge of a lay person i. publications. d. The idea is to prevent sidetracking of the case and excessive time in front of the judge. It is important to know what was produced and when. The party¶s have a duty to preserve evidence that may prove to be relevant to the litigation. qualifications. Include a copy of CV. non Mandatory disclosure: amended in 1993. The other side will want to depose the witness. Testifying witness: choose someone with an impressive CV and who comes across well to the jury. d. Mandatory disclosure v. Taylor. y 32 . The same thing is true with other instances of privilege such as doctor/patient. and findings. y Always indicate on the document that the document is protected by privilege. c. e. y The more something is unique the more likely it is that the court will allow the document in and limit the exercise of privilege. These obligations to disclose are enforced by rule 37(c)(1). is part of rule 26a.e. Consultant: person who you employee because their credentials may make them a testifying witnesses. e. Duty to preserve evidence: Spoliation. f. Some work product is less protected than others.

A court may impose punishments ranging from awards of expenses to dismissals of an entire case or the entry of a default judgment. and discovery. 2002 period. y Plaintiff invoked 5th amendment rights against self-incrimination. FRCP rules are not consistent. Steffan v. Cases a. y Core work product is almost never discoverable. ii. y Look for broad reoccurring patterns that exist within the FRCP rules of personal jurisdiction. y The judge holds that some of the information is in fact barred by privilege and is not discoverable. The question is: are Plaintiffs entitled to said discovery? 2. y Other sanctions can only be imposed if the party fails to comply after the court orders them to do so. iii. Two types of sanctions: y Immediate: Rule 37 (d)(f) are available on the occurrence of the misbehavior. y 33 . Rule 37: provides some sanctions to ensure discovery. 3. Precoat Metals 417 y Hostile work environment allegations made by African-American and Latino employees at Defendant¶s Chicago plant. Complaints by employees who worked at the same Chicago plant. in refusing to answer questions as to if he engaged in homosexual activities during Plaintiff¶s tenure with the Navy. subject matter jurisdiction. in some respects they favor efficiency and in other respects they favor accuracy. The plaintiffs allege discrimination in treatment and retaliation against them by company personnel after complaints were lodged. But that the information was relevant. 1. Rule 37 (b) i. a. h. y Plaintiffs are requesting disclosure of other employee complaints of discrimination against the Defendant. The Plaintiffs have limited their discovery requests to: i. Cheney 419 y Claim of constructive discharge due to the fact that Plaintiff was homosexual. and by the fact that producing the information is unduly burdensome to the non-parties to whom the request was made. Butler v. pleading. c. and that although expensive to produce the benefit conferred outweighed the burden. and that the information is not relevant to the lawsuit. Complaints of race and national origin discrimination. The 1998-to-Feb. The court concludes that the requests sought by plaintiff are narrowly tailored to their specific claims and are thus discoverable.Facts may be discoverable if there is no other place where they can be found. b. There is always a tradeoff between accuracy and efficiency. Davis v. as an exception. Rigsby 30 y The plaintiff claims that requests for discovery made by the defendant are barred by doctor/patient privilege. j.

1. y In the appeal the court held that under Rule 37. i. ii. This is affirmed by the appeals court. Plaintiff contends that his injuries were enhanced by the failure of the airbags to deploy. Thus the trial court erred in finding that the inquiry into homosexual conduct to be relevant on the grounds they asserted since the question dealt with wrongful discharge and not misconduct as the trial court stated. d. Also plaintiff claims that he had no control over the car and that he could not prevent the spoliation. no sanction may be upheld if its imposition was based upon an error of law and reversed the sanction. Plaintiff further argued that dismissal was too harsh a penalty because GM was not so severely prejudiced that it could not defend itself at trial. The question of law was not misconduct. failed to preserve the car for examination by GM experts. i. y During the course of the litigation Plaintiff. That spoliation was highly prejudicial to GM and it is a combination of both these elements that leads the court to conclude that the action should be dismissed. Silvestri v. e. 1. When Plaintiff refused again. 3. Taylor 442 y The case deals with work product privilege. The court stated that even though plaintiff was not the owner. The court dismissed the action stating Plaintiff had a duty to preserve the evidence and dismissal was the appropriate penalty for the spoliation of evidence. 34 . The car was repaired.1. he still had a duty to at least inform GM that the owner was going to have the car repaired and allow them to take appropriate steps. 421 y Products liability case against GM for the failure of the GM car driven is airbags to deploy correctly. Hickman v. Since it was apparent to the court that the Plaintiff had access to the car for his side to examine it. Court ordered Plaintiff to answer the questions. the court ordered Rule 37 sanctions against Plaintiff for failure to comply with the discovery rules and dismissed the case. who was not the owner of the car. 2. The question of law is the wrongful discharge: of the Plaintiff was wrongfully discharged he has never been discharged and in the eyes of the law he remains in service. Court states that Plaintiffs actions were either intentional or negligent. Since answering the question is highly relevant to the defendant¶s defense that Plaintiff violated the rules and should not be reinstated. Plaintiff¶s argument: that he had no duty to preserve the evidence since he was not the owner and was not required to take any steps to preserve the evidence for GM to examine. 2. General Motors Corp. i.

From one State court out of a country. or willfully? c. if the party acted willfully there is no relevance prong because it is implied from the destruction. Relevance: how relevant was the evidence to advancing the case« the party must prove that the document destroyed would have seriously advance the case. Zubulake v. and has a system set in place across the board. and that to allow discovery in this case would undermine our adversary based legal system. Culpable State of Mind: was the document destroyed negligently. for an additional duration. because while the court has the authority to hear the case. (The relevance question should only be asked when there is negligence or recklessness. Transfer: 28 USC § 1404 applies only to Federal Courts. f. From one Federal court out of a country (Common law doctrine) 3. 35 . 1. Federal Venue Statutes a. Forum Non Conveniens 1. From one Federal court to a Federal court 28 USC § 1404 2. y This is done for reasons of efficiency.) y If a court awards an adverse inference order it is not likely that the order will be reversed and that it is likely that the case will probably settle before trial. y The court concludes that attorney work product is generally privileged and that the plaintiffs are not entitled to discover the strategy and thoughts of opposing counsel. implement policies to retain material. Forum Non-Conveniens & Transfer Motions .The plaintiffs were attempting to use the discovery tools to obtain information about the strategy and thoughts of the defense counsel who took notes and interviewed witnesses in preparation for litigation. because one side will probably be pretty sure to lose. (Common law) y This is different from removal because removal covers moving from a state court to the federal court. UBS Warburg LLP. in the interest of justice. y The court requires that companies. allowing them to move cases around the country for the convenience of parties and witnesses. 464 y Document retention policy: the company deletes documents after a particular period of time. b. Duty to preserve: did the party have a duty to preserve the information b. who anticipate litigation. it elects not to because it may be better heard elsewhere. which may be needed for discovery. recklessly. In Zubulake the retention policy is three years. The court holds that it is unfair in to attorneys to require that their work product be disclosed to the opposing side. a. unless there is some compelling reason. k. y Three prong test: before awarding an adverse inference order the court looks at three things.

Bhd. typically tries to place suits in areas connected either to the parties or to the events giving rise to the action. y The Federal venue statute applies only to actions originally brought in Federal Courts. The action was brought in Eastern district of VA. v. 3. y A Corp. Federal Venue Statute: 28 USC §§ 1391 1392. 1. 4. A defendant not subject to jurisdiction in any state court that is severed with process is subject to personal jurisdiction in Federal Courts as long as the assertion of jurisdiction when: i. A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. 160 1. y Piper Aircraft v. Cases y Dee-K Enterprises. y For real property (land) the rule states that only the courts of the state where the land is located will hear cases that raise any question concerning title to the land. is controlling over the Clayton act which allows suit to be brought only where the defendant may be found. An anti-trust action against US & non-US corporations for price fixing. Inc. In many respects the inquiries necessary under present venue statutes duplicate those involved in personal jurisdiction questions. Deals with transfer and forum Non Conveniens. and restraint of competition in the rubber thread trade. The action is for strict liability and was brought in Federal Court for diversity purposes. if not the action may be transferred. iii. 2. Heveafil Sdn. Does not offend the constitution 3. As long as the venue lies in the district encompassing the state court from which the case is removed. 5. A judicial district where any defendant resides ii. The assertion is consistent with Federal laws ii. Reyno 164 1. y Venue is statutory and can be abolished.c. For the domestic defendants 28 USC § 1391 (b) allows venue when: i. d. 6. 2. defendant is considered to reside wherever it is subject to personal jurisdiction. if there is no district in which the action may otherwise be brought. and though the plaintiffs have been able allege some connection with VA they must show sufficient contact that at least one of the American distributors may be found in the Eastern District. A judicial district in which any defendant may be found. The present venue statute took its present form in 1990. The service of process on the defendant did not offend the constitution. Issue 1: Transfer 36 . 28 USC § 1391 (d) allows aliens to be sued in any district. For international defendants. Cases removed from state to federal court are not subject to federal venue requirements.

v. Once the case arrived in PA the defendants moved to dismiss due to Forum Non Conveniens. The Supreme Court. ii. the laws in Scotland are more favorable to the Defendant since they do not allow strict liability and limit the amount of damages which may be awarded to the Plaintiffs. The defendants asked that it be transferred to PA since PA is more convenient to the defendants.IX. iv. Exception: is the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all the unfavorable change in law may be given weight. The trial court held: that the case may be dismissed due to Forum Non Conveniens. If the possibility of an unfavorable change in substantive law is given substantial weight dismissal would rarely be proper. iii. 4. The court also concludes that even if the case were to be tried in PA Scottish law should be controlling since Scotland has more of an interest in the litigation than American law. 1. The action was initially brought in Federal Court in CA. 5. and the accident occurred in Scotland. 3. Weight is given to the forum selected by the Plaintiff if it is the plaintiff¶s home forum. Summary Judgment also known as Curtailed Adjudication: See FRCP # 56 37 . when it is not the home forum then the plaintiff¶s right to choose the forum may be overcome by private and public factors towards having the trial in the alternative forum. Motion granted. However. vi. Issue 2: Forum Non Conveniens. This was reversed by the appeals court stating: dismissal for forum non conveniens is never appropriate where the law of the alternative forum is less favorable to the plaintiff. ii. 4. (the issue on appeal) i. holds that favorability of the law should not be an issue when granting dismissal for forum non conveniens. Stating that Scotland was the more appropriate forum for the suit. Also the flow of litigation to the US would increase and further congest an already crowded court. since the victims were Scottish. PA courts are not very familiar with Scottish law and as such the burden on the court to hear the case is high enough to warrant the dismissal. 2. i.

38 . 1. and the facts must be viewed in the light most favorable to the opposing party. 2. d. However. v. y The court held that this was not sufficient evidence. Rule 56 (c) requires courts to grant summary judgment only when there is no genuine issue as to any material fact. y The sole evidence provided by the plaintiff is the declaration of death from the state. y Rule 56 regulates summary judgment: A party may move for summary judgment at any stage of the proceeding. reversed on appeal to the Supreme Court. b. not all cases should reach trial. Motion for summary judgment granted by trial court. In order to survive the summary judgment the plaintiff would have had to show that there was some evidence to suggest an accident or murder. Even though the state allows a person to be declared deceased after being gone for 7 years. Houchens v. 34 a. However. The respondent has the burden of showing the absence of a genuine issue as to any material fact. The provisions for discovery implicitly suggest that dismissal should not occur until the parties have had a full opportunity to obtain factual information about the case. and identifying those portions of the pleadings and discovery which it believes demonstrates the absence of a genuine issue of material fact. c.a. b. c. y Rule 56 does not contain an express or implied requirement that the moving party support its motions with affidavits or other similar materials negating the opponents claim. it does mean that the death was actually an accident or a murder. revered in error by appeals court. Catrett contends that her husband died after being exposed to asbestos in products created by Celotex. y Summary Judgment provides a mechanism for deciding cases for which a trial is not necessary and would serve no purpose. y A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion. y The dispute is surrounding the inability of Catrett to prove that the exposure to asbestos occurred during the statutory period. Motion Granted. Catrett 529 a. The burden of proof is on the plaintiff to prove that the death was in fact accidental and/ or the fact her husband was actually dead. Motion for summary judgment granted when plaintiff was unable to prove that the declared death of her missing spouse was the result of an accident or murder. This is a wrongful death case. Celotex Corp. generally such motions are not granted until after the factual development of the case is complete and discovery is over. y A motion for summary judgment should only be granted if there is no material dispute of the facts. b. It only means that the person cannot be found and is presumed to be dead. American Home Assurance Co.

535 a. Advantage International. y In order for testimony to contradict the testimony of the other party it would have been necessary to produce witnesses to testify to events that directly contradict the testimony of the teammates. Since the plaintiffs were unable to prove that the deceased was not a habitual drug user and the issue of insurance companies not issuing policies to drug users was a matter of fact the motion for summary judgment should be granted. Motion for summary judgment granted. y The reason the drug use was an issue is because no insurance company would have issued a life insurance policy to a habitual drug user without a material misrepresentation. at the request of basketball star (deceased) and family. y The principle purpose of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. y Summary judgment is an important part of the trial process and is necessary to secure just. You may also want to see if there is a forum selection clause. ***Three things to look for are: 1. Inc. Life insurance policy not obtained by agent. the historical context of the use of jurisdiction in the past. because Plaintiff failed to prove that deceased was not a habitual drug user. b. 2. Bias v. y Any potential problems can be dealt with under Rule 56 (f) which allows a summary judgment motion to be denied or continued if the nonmoving party has not had an opportunity to make full discovery. y If Bias was a habitual drug user then the agent would not have been able to obtain a life insurance policy for him and as such had no obligation to do so and no liability for failing to obtain the policy. y The testimony of the parents and coach were not sufficient to contradict the testimony of teammates who were present at the time the alleged drug use took place. If there is in fact minimum contacts according international shoe how are they applied. *** 39 . speedy and inexpensive determinations.1. y The moving party successfully proved that there was no evidence presented by the nonmoving party to support a continuation of the litigation. c. those other witnesses would have needed to be present at the same events for their statements to be credible. d. 3. The test used by the court to determine the contacts. Rule 56 (c) suggests that the absence of such a requirement.

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