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.............................. 4 Venue ....................................................................................................................... 5 Removal/Transfer .................................................................................................... 5 Applicable Law ........................................................................................................ 6 Rule of Federal Civil Procedure: ........................................................................... 7 Res Judicata ............................................................................................................. 9 Remedies ................................................................................................................ 11
I. II. III. IV. V. VI. VII. VIII.
Joinder Rule, Territorial Jurisdiction, then Subject Matter Jurisdiction, then Venue I. CONTACT Isolated Relationship Continuous Relationship Isolated Relationship Continuous Relationship CIV. PRO. I ± Is there Territorial Jurisdiction??? ACTIVITY Unrelated Event Unrelated Event Related Event Related Event JURISDICTION NO jurisdiction General Jurisdiction Specific Jurisdiction Specific/General Jurisdiction
General Jurisdiction ± not related to the activity (helicopteros 201) ± must have systematic and continuous contact ± (Helicopteros 191) Specific Jurisdiction ± related to the activity (helicopteros 201) Special Appearance ± only at the state level (interlocutory appeals); feds 12(b)(2) In Rem (quasi-in-rem) Property (Shaffer 252) needs minimum contact/fairness in all assertions of jurisdiction (Int. Shoe 166) In Personam Persons (Shaffer 252) (Burnham 270) 4 votes: presence = territorial jurisdiction 4 votes: minimum contacts and fairness Rule 4(k)(1) ± normally Rule 4(k)(2) ± when there is a federal question and there is no jurisdiction in any state
Page 2 of 12 Power Theory ± in state = in personam (149) & in rem (150) jurisdiction (Pennoyer v. Neff) Full Faith and Credit ± states recognize ruling from courts in other states 151 Personal service within the state = jurisdiction (Harris v. Balk 160) DUE PROCESS In Rem and In Personam Jurisdiction Test: (Shaffer ± 259) establish Minimum Contacts then decide on Fairness ± (Burger King 204) 1. Long-arm Statute y Rule 4(k)(1) ± Feds use state statute y Rule 4(k)(2) ± when there is a federal question and there is no jurisdiction in any state; does not violate the Fed. Constitution; y Plaintiff has burden of proving the long arm statute reaches the defendant (Foxwoods 4) Burden of proof based on: 1. Testimony - preponderance of evidence 2. Discovery - prima facie case; info presented is true, Plaintiff prevail 3. Complaint - legally sufficient allegations; given allegations it's possible, Plaintiff prevail 2. Constitutional: Due Process Requirement i. Rule 4(k)(1) use the 14th ii. Rule 4(k)(2) use the 5th iii. Threshold is: Defendant¶s Minimum Contact 1. The test is: Reasonably anticipate being hailed to the forum 2. Plaintiff has burden of proving min contact (Met Life 4) Burden of proof depending on possibilities: 1. Testimony - preponderance of evidence 2. Discovery - prima facie case; info presented is true, Plaintiff prevail 3. Complaint - legally sufficient allegations; given allegations it's possible, Plaintiff prevail y We look at contacts in toto (as a whole) Met Life 7 1. Systematic and Continuous: (intl. shoe 168) not enough alone (Met Life 9) a. Property b. Dealers c. Advertisements d. Sales e. Target (i.e. consumer) f. Personnel g. Over a reasonable period of time (courts discretion) ± Met life 6 h. Unilateral activity does not satisfy contact ± (WWVW 182) 2. Nature and quality (Int. Shoe 167)
Page 3 of 12 Fair Warning and Purposeful Availment ± (Burger King 201, WWVW 181) y Benefits and protection of laws of forum(Intl shoe 168) b. Foreseeability ± not wholly irrelevant; reasonably anticipate being haled into forum (WWVW 181) c. Reach beyond one state to create continuing relationship/obligation with citizens of the other state ± (Burger King 201) 3. Stream of conduct (WWVW 181) a. Delivers products into stream w/ expectation of purchase within the forum 4. Internet: i. Zippo Rule: Nature of the website 1. Active - min contact 2. Intermediate (ads and links): a. Examine the level of interactivity and commercial nature of the exchange (Foxwoods 6) b. ³something more´ to demonstrate that the defendant directed his activity toward the forum state c. Significant interaction (Foxwoods 7) y Links and advertisements lead to profits y Pay for subscription 3. Passive (ads) - no min contact
Effects Test: for personal jurisdiction (Foxwoods 8) 1. Purposeful Availment can be found for intentional torts over the internet, when they are intentionally directed that the forum (Foxwoods 8) 2. defamation cases, etc.
ii. Balanced with: Fair play and substantial justice 1. Defendant has burden of proving unfairness 2. Must make a "compelling case (Met Life 12) y Must be compelling in relation to the plaintiff's burden y We columnize each, in favor of which party (weak or strong) (WWVW 178) 1.States interest in adjudicating ± protects the state citizens interests 2.Plaintiff's interest ± convenience (weak argument) 3.Defendant¶s interest ± convenience (weak argument) 4.Efficiency ± where are the witnesses and the evidence? 5.Social policies ± common interest of several states
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II. Is there Federal Subject Matter Jurisdiction??? 1. 1331 (Fed Question) 2. 1332(a)&(b) (Diversity & Amount >75,000.00)) A single plaintiff may aggregate claims against a single defendant (must have TJ, SMJ, and Venue) 4. 1332 (d) ± (class action) greater than $5 mil., greater than or equal to 100 P's Mandatory -not (3) or (4); no more than 1/3 P from state where filed Permissive - (3) greater than 1/3, but less than 2/3, P and D are from state where filed Prohibited - (4) (a) Greater than 2/3 of P plus one defendant (b) 2/3 or more plaintiffs plus primary defendants are citizens of state where action was filed. 5. 1367 (Supplemental) a. Must be the same case or controversy b. Does (b) take away (when original claim is 1332)? i. No claims by plaintiff against parties joined under rule 14,19, 20, 24 ii. No claims by people joined as plaintiffs under Rule 19 or 24 c. May decline exercise SMJ over a claim if: i. If it is a novel/new or complex State Law ii. State law predominates iii. Dismissed it's original jurisdiction claims Exceptional circumstances, compelling reasons to decline iv. Rule 14 - Indemnity claim Rule 19 - Current parties want a nonparty to join Rule 20 - Joinder - Multiple P and Multiple D Rule 24 - Intervention - a nonparty wants in 6. 1335: Interpleader Interpleader - joinder device; multiple parties have claims to something y Plaintiff is suing claimants who have inconsistent claims Interested stakeholder = claimant Disinterested stakeholder = not a claimant Rule 22 Interpleader: Basis for SMJ is 1332 Under 1332: diversity is based on opposite sides of the v. sign TJ: Rule 4k1: Need minimum contacts 1335 Interpleader: Basis for SMJ is 1335 Under 1335: need minimal diversity of adverse claimants (those seeking ownership) TJ: 2361 gives nationwide service of process If there are other lawsuits: Under 1332: 2283 - cannot enjoin state court until a Fed. Judgment Under 1335: 2361 - can enjoin other cases from going forward, including state court Is there Venue for Interpleader? 1332: Governed by 1391- Where all defendants reside 1335: Governed by 1397- Judicial dist. where one or more claimants reside 7. 1369 (Class Action)
Page 5 of 12 a. Need Minimal Diversity - If substantial majority of P from same state as D, no jurisdiction b. Single Accident c. At least 75 Natural People (not corp.) have died III. Is there Venue???
1391 VENUE (a) Jurisdiction is founded on Diversity of citizenship Jurisdiction can be: 1. District where defendants (if all same) reside, 2. District where substantial part of events occurred, 3. District where any defendant may be found (b) Jurisdiction is not founded on Diversity of citizenship Jurisdiction can be: 1. District where defendants (if all same) reside, 2. District where substantial part of events occurred, 3. District where any defendant may be found (territorial jurisdiction) (c) Defendant who is a corporation in a state with multi-district 1. Look to each district like a state, look for most significant contacts IV. Removal/Transfer Unless the federal statue states exclusive federal jurisdiction there is concurrent jurisdiction 1441 = if it could have been filed there (D's can remove) 1446 Procedure - file a notice of removal within 30 days of receipt of complaint 1447 After removal Can remove court from state court to federal court, cannot remove from federal court to state court. 1441 a. If it could have been filed in fed. Court originally it can be removed b. 1331 claims are removable, 1332 claims are not removable if the D is a citizen of the state where the suit is brought Change of Venue: 1404 1. Transfer a. District it could have been filed originally (TJ and Venue) i. TJ constitutional analysis ii. Venue 1391 1. State v. Federal a. Federal District to another, regardless of which state b. State i. Can transfer within the state 2. Foreign Country a. No We can transfer within the boundaries of the system. In order to send it to another judicial system it must dismiss
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Forum Non Conveniens - common law on dismissal - out of system y Stricter standard y Judge may attach conditions of dismissal 1. Waiver of statute of limitations 2. Agree to submit to jurisdiction in other place Transfer - within system y Lenient stantard 1404 -transfer 4k2 - fed question If claimants are outside US Look to 5th amendment - due process Contacts within entire US V. Which Law To Apply Where you file, that law may not apply. If you transfer, choice of law rule is the same If you dismiss, choice of law rule is the new forum 1. Erie Doctrine (Diversity Cases) y must apply state substantive of the state where the court sits, apply federal procedural law y Procedural Law: Federal Law: how to enforce y Substantive Law: State Law: establishes right and remedy 2. Guaranty Trust y Definitions become useless y Outcome Determinative Test 3. Byrd - balance the nature of the interests at stake a. Constitutional interest v. efficiency interest b. Is there a more important interest present 4. 28 U.S.C a. 2071 - rule making power b. 2072 (a) can create FRCP (b) cannot abridge or change substantive rights Enabling Act: 28 U.S.C 2072 2072(a) FRCP trumps all others 2072(b) Cannot abridge any substantive rights i. If it does it is invalid a. Outcome Determinative Test b. Erie Test c. Balance Test d. Primary Decision Test = Modified Outcome Determinative Test
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Rule of Federal Civil Procedure:
Rule 13: Cross and Counterclaims Counterclaims y A counterclaim is "compulsory" under 13(a) if it "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim." y A counterclaim is "permissive" under 13(b) if it does not arise out of the same transaction occurrence as the plaintiff's claim. Cross-Claims Against Co-Parties y Under Rule 13(g) a cross-claim may be asserted only between co-parties; typically codefendants y Once Rule 13(g) is made, the cross-claiming party can add unrelated claims against the cross-claim defendant under Rule 18(a).
Rule 14 Indemnity claim - D sues 3rd party for reimbursement of P's claim - Claim against non-party: Thomas join's Owner as a third party-D; Rule 14 (indemnity); need SMJ Can owner file back against Thomas? Yes, rule 14(a)(2)(b) Rule 18: joinder of claims: allows all claims, but does not give SMJ Rule 19 Joinder ± current parties want to join others a. Necessary Parties: Persons required to be joined if feasible (If there is territorial or subject matter jurisdiction) 1. If your absence will prejudice another party 2. Or absence will prejudice absent person y Cannot give complete relief to existing parties (i.e. joint ownership, environmental) y Absent party y Impair ability to protect interest (i.e. ownership interest, claims to a resource) y Multiple or competing litigation/claims (i.e. ) b. When unfeasible (If there is no territorial or subject matter jurisdiction) 1. Continue without 2. dismiss i. Minimize loss (or potential there of) ii. Or another forum (State Court) Rule 20 Joinder - Multiple P and Multiple D Authorizes "permissive joinder of multiple Requirements 1.Arising out of same transaction 2.Question of law or fact to all of the joined parties If they were outside litigation who wants in: Rule 22
Page 8 of 12 Inside wants to join another: Rule 19 Rule 22 Interpleader a. Grounds 1. By Plaintiff y Persons with claims may expose a plaintiff to double or multiple liability may be joined and required to interplead. y Joinder for interpleader is proper even though: y Claims of the several claimants lack common origin or are adverse rather than identical, or y Plaintiff denies liability in whole or in part to any or all of the claimants 2. By a Defendant y A defendant exposed to similar liability may seek interpleader through a cross or counterclaim Rule 23 Class Action: 23(a) Prerequisites: 1. Numerosity: Class is so numerous that joinder is impracticable y Rule 20 would not work y Most courts look at about 100 members 2. Commonality: Common question of law or fact 3. Typicality: Claims/defenses or the representative parties are typical of claims/defenses of the class y Court can create sub-classes for different class claims 4. Fair Protection: Representative parties will fairly and adequately protect the interests of the class 23(b) Types of Class Actions 1. Prosecuting separate actions by or against an individual class member would create risk of: A. Inconsistent or varying adjudications y Individual rights v. institutions B. Would be dispositive of the interests of other members; impair or impede ability to protect other members' interests y Anti-prejudice y Limited resources 2. Injunctions: Party opposing the class acted/refused to act on grounds that apply to the class; so that final injunctive relief or corresponding declaratory relief is appropriate to class as a whole y Civil rights actions y environmental 3. Common Question: court finds questions of law or fact common to class members predominate over any questions affecting individual members; class action is superior to other forms of adjudication y Practical Matter: common question predominate and class action is superior Factors: A. Interest in individual control
Page 9 of 12 B. Extent and nature of existing litigation C. Desirability of concentrating litigation in one forum D. Likely difficulties in managing a class action y Can the court control the lawsuit: too many people in court Rule 24 Intervention - a nonparty wants in A mirror of 19 Case where you don¶t have to join: Temple, joint tortfeasors don¶t have to join Is it permissive 24(b) y Same question of law? As of right 24(a) y Impair recovery? o Limited fund - have right to join Rule 56: Summary Judgment y Can be filed by either party y No issue/dispute of material facts 1. No issue of material fact 2. Entitled to judgment as a matter of law Defendant can file any time Plaintiff can file any time after: 1. 20 days have passed from commencement of action 2. The opposing party serves for a motion for summary judgment With info: (Presentation is not admissible) - Depositions, Answers to 'rogs (interrogatories), admissions, Affidavits, Live testimony (dangerous on cross exam.) - Is the Content admissible ??? VII. Res Judicata If there has been a ruling on this issue you cannot raise it again (unless change in circumstance One chance to bring a motion Can be filed on any single count or contention regarding liability What must the movant demonstrate to prevail? Plaintiff - There is no question of law and met burden Defendant - This is only feasible after sufficient discovery - There is no question of law and Plaintiff did not meet burden o Plaintiff has not presented sufficient evidence on ____ o I have affirmative evidence of not ______ Inside Pleadings 12 motions Outside Pleadings Summary Judgment Same claim, same parties = claim preclusion Barred by res judicata: could have been filed in original suit - File a 12(b)(6)
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Motion after answer is 12(c) Rule 56 - summary judgment (add materials outside pleadings) Unrelated transactions, not the same claim, but same issue Partial summary judgment in respect to that issue Partial Summary Judgment Necessary for Issue Preclusion - same parties Must be same issue - identical Must be litigated - judgment from court, not settled Must be determined - 1 issue case; findings of fact/conclusions of law Eg. Default - no good Eg. P v. D (neg) 1. D neg? 2. P contrib neg? 3. Causation? Verdict for D- does not let you know what determination on issues was Must be essential to judgment a. If you know the outcome based on the issue it is essential Multiple Parties Cannot preclude someone who was not a party to the original litigation; violates due process P v. D1 P loses P v. D2 - same issue Defensive issue preclusion If jurisdiction requires mutuality (only if same parties); issue preclusion is not allowed If jurisdiction as abrogated (gotten ridden) mutuality in defensive cases; we can preclude Feds and most states have abrogated mutuality P1 v. D P wins P2 v. D Offensive If jurisdiction requires mutuality; issue preclusion is not allowed If jurisdiction as abrogated mutuality in context of offensive; it is precludable theoretically, but give the trial judge discretion: is it fair? 1. Different incentives 2. Wait and see approach 3. Procedural differences 4. Prior inconsistent judgment
1. 2. 3.
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VIII. JUDICIAL REMEDIES Remedies- Rule 64 pg 119 Attachment ± the seizure of property Preliminary Injunction ± specific relief - rule 65a Temporary Restraining Order ± rule 65b General Damages: Text book; naturally flow from this kind of conduct Personal Injury; not out of pocket (pain and suffering) Special Damages: Textbook; peculiar to the circumstances Personal Injury; out of pocket ($) EQUITABLE REMEDIES 1. The distinction between plenary and provisional remedies y Plenary remedies are awarded at the end of a lawsuit y Provisional remedies may be awarded at any time 2. Compensatory Damages a. Tort Cases y Medical expenses y economic losses attributable to the interruption of normal life on account of the injury y Lost income during the period required for recovery y Economic loss attributable to any permanent injury y "pain and suffering" either temporary or permanent a. Contract Cases y "Benefit of the bargain" y "Liquidated damage clause," if contract is broken a provision states dollar amount y "liquidated damages" may be seen as a penalty and struck down for actual damages 3. Are compensatory damages fully compensatory a. Attorney's fees -are not included b. Interest - are included c. The collateral source rule - damages are not reduced for payment by third parties (insurance companies) d. Overcompensation, undercompensation and tort reform y Caps have been put on "pain and suffering" y Caps may be problematic, undercutting actual damages 4. Punitive/exemplary damages a. Basic principles y Cannot be awarded without compensatory damages y Are punishment for bad faith, intentional, reckless acts y Private fines for moral outrage b. State limitations on punitive damages y In some states they go to State Treasury
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y y y y y y
Some states have caps Some states look at defendants income Constitutional questions on caps Federal constitutional limits on punitive damages Substantive and procedural requirements are contained in the Due Process Clause Damages cannot be grossly excessive Reprehensibility of the defendant's conduct The ratio between the punitive damage award and the severity of harm inflicted or threatened The ratio between the punitive award and legislative sanctions for similar misconduct
SPECIFIC RELIEF 1. Specific relief: injunctions y Section 1291- general rule (541) y Section 1292 ± the exceptions interlocutory decisions (541) y To perform or not perform a specific act y Important consequences 1. The terms where an injunction takes place is on the discretion of the court 2. Tried to a judge rather than a jury 2. Restitutionary remedies: constructive trusts, and rescission or cancellation y Protects against unjust enrichment due to contractual obligations regarding property 3. Other equitable remedies a. Reorganization of financial affairs - untangle financial affairs of businesses b. Suits to determine title to land 4. Declaratory relief: the court declares the legal rights of a party and no other relief 5. Provisional remedies: attachment. y A judicial order obtained in the early stages to stabilize the situation pending the final disposition of the case or to provide security to the plaintiff 6. Provisional remedies: temporary restraining orders and preliminary injunctions y Only if immediate relief is necessary and the defendants presence cannot be secured in time for a hearing
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