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Civil Procedure I Outline

Professor Litwiller Checklist to Civil Procedure I Subject Matter Jurisdiction General Principles Federal Question Jurisdiction Supplemental Jurisdiction Challenge to Federal Subject Matter Jurisdiction Removal Jurisdiction Personal Jurisdiction Due Process Clause Long Arm Statute In Rem and Quasi In Rem Jurisdiction Traditional Approach In Rem Jurisdiction Quasi In Rem Jurisdiction Modern Approach: Shaffer v. Heitner The Due Process Requirement of Notice: Service of Process Mullane v. Central Hanover Bank Permissible Methods of Service Venue Statutory Requirements Under Federal Venue Statute Local Action Rules Suits Concerning Real Property Challenging Improper Venue in Federal Court Removal Transfer Inconvenient Forum (Forum Non Coveniens) Choice of Law/Erie Doctrine Pleadings Purposes Pleading Requirements Complaint Pleading Special Matters Challenges to the Complaint Answer Amendment Joinder of Claims and Parties Joinder of Claims Joinder of Parties Yeazell, Civil Procedure, Sixth Edition Preface

An Overview of Procedure The Idea and Practice of Civil Procedure Civil Procedure Defined Method by which private litigants can invoke the power of the judiciary to address wrongs and resolve disputes Judiciary Federal Judiciary District Court Trial level court Circuit Courts of Appeal Appellate court Supreme Court Highest appellate court State court system Trial Courts CA Superior Court NY Supreme Court District Courts of Appeal Appellate court Supreme Court Highest appellate court Stare decisis Let the decision stand; Basis of common law Precedent Two types Mandatory binding Permissive suggestive Circuit Split Two federal circuits decide differently on the same issue Where Can the Suit Be Brought? (Federal Court Requirements) Subject Matter Jurisdiction (SMJ) Whether a court can hear a particular type of dispute Waiver Lack of federal SMJ can be raised at any stage, including appeal Rule 12(b)(1), Lack of Jurisdiction Over the Subject Matter Parties cannot confer SMJ on a federal court by consent C State Courts have general subject matter jurisdiction General Jurisdiction Can hear any kind of claim arising under state or federal law, unless legal authority says otherwise e.g. California Superior Court Concurrent and Exclusive Federal Jurisdiction Concurrent Jurisdiction Both federal and state courts can hear Exlusive Jurisdiction Only certain federal courts can hear Admiralty, Bankruptcy, Patent & Copyright, some Antitrust Limited (Federal) SMJ Federal Question 28 USC 1331 Federal Question

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U.S. e.g. First Amendment issue Well-Pleaded Complaint Rule A claim does not arise under federal law unless it appears on the face of a well-pleaded complaint Substantial federal issue must be raised as a legitimate part of the plaintiffs cause of action; must not be utterly frivolous or without merit Louisville & Nashville R.R. v. Mottley Plaintiff cannot manufacture federal question jurisdiction by anticipating a federal defense Limited (Federal) SMJ Diversity of Citizenship 28 USC 1332 Diversity of Citizenship; Amount Controversy; Costs (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different States; (2) citizens of a State, and citizens and subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, as defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States. For purposes of this section . . . an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled. [. . .] Amount in Controversy must be in excess of $75,000 Claim must be in good faith, excluding non-principal interest, fees, costs, etc. Can be defeated by showing a legal certainty that it is impossible plaintiff could recover in excess of $75,000 Jurisdiction is not lost if plaintiff ultimately recovers under $75k; the court, at its discretion, may penalize plaintiff by refusing to award costs or imposing costs Effect of injunction Majority of states value injunctions at their value to plaintiff; minority of states value injunctions at their cost to defendant Aggregation

A single plaintiff may aggregate his claims against a single defendant to meet the requisite amount in controversy Multiple plaintiffs may only aggregate if their claims are based upon a common undivided interest. Where one plaintiffs claim exceeds $75k and a second plaintiffs claim against same defendant is less, second plaintiff may sometimes be able to assert supplemental jurisdiction under 28 USC 1367 Plaintiff suing multiple defendants cannot aggregate his claims unless the defendants are jointly liable to the plaintiff (Complete) Diversity of Citizenship - 28 USC 1332(a)(1) Looks to domiciliary (1) Physical residence plus (2) intent to remain indefinitely Residence Must have fixed and permanent home in the state; it is not enough that one intends to make a state a permanent home if a place to live has not been established in the state Intent e.g. Residence, employment, voter/auto registration, bank accounts, where taxes are paid, etc. A person keeps a domicile until a new one is acquired Corporations are citizens of state(s) where incorporated and principal place of business located - 28 USC 1332(c)(1) Principal place of business determined by corporate headquarters (nerve center test) or where corporation conducts most of its business (muscle test); Judge makes determination Diversity determined as of actions commencement (date of complaint filing), not date of injury; diversity need not continue after suit commences Personal Jurisdiction (In Personam Jurisdiction) (PJ) Power of the court to render a judgment that binds the person of the defendant One cannot be sued in a state that has no personal jurisdiction Can be challenged only in pre-answer motion or answer, or it will be waived Rule 12(b)(2), Lack of Jurisdiction Over the Person Does not apply to plaintiff because the plaintiff waives personal jurisdiction when the complaint is filed Serving of summons on defendant is how plaintiffs assert personal jurisdiction Can be conferred on court by consent under Due Process Clause Two types (1) General and (2) Specific General Jursdiction Arises when defendants contacts with forum state are continuous and systematic Defendant can be sued in forum state for any cause of action, even unrelated to the contacts with the forum state Gotcha or Tag jurisdiction current reinterpretation of Pennoyer If served in a state, one is subject to general personal jurisdiction in that state; venue is still an issue Specific Jurisdiction Arose from Intl Shoe court as alternative to in rem

When defendant has certain minimum contacts within the forum state such that haling the defendant into court would not offend traditional notions of fair play and substantial justice (minimum contacts doctrine) Case must arise out of defendants contacts within forum state Minimum contacts Purposefully availing oneself of the privileges and benefits of doing business within forum state Purposeful Availment Test (World-Wide Volkswagen Corp. v. Woodson) Assess whether contacts are purposeful or deliberate acts of the defendant directed at the forum state Unilateral acts of third parties insufficient for defendant to reasonably expect being haled into court WWVW v. Woodson Contact is a contract with citizen of forum state: prior negotiations, duration of contract relationship, place of performance, terms of contract, actual course of dealing Burger King v. Rudewicz Assess the frequency and regularity of defendants purposeful contacts Assess the nature and quality of defendants contacts with the forum state Assess the relationship between plaintiffs cause of action and defendants contacts with the forum state (Nexus Test) Where defendants contacts are merely isolated or occasional, or even continuous and systematic but not substantially so plaintiffs cause of action must arise out of, or be sufficiently related to, those contacts Fair Play and Substantial Justice Test Relative convenience of forum to plaintiff and defendant Factors include relative financial resources of plaintiff and defendant and the location of evidence Interest of the forum state in adjudicating case Plaintiffs state-citizenship is relevant Plaintiffs interest in obtaining relief Ease of access to alternative forum Bryant v. Finnish Natl Airline Only alternative was in Finland Relationship between purposeful availment and fair play and substantial justice Strong showing of fair play and substantial justice can sometimes outweigh weak showing of purposeful availment McGee v. Intl Life Insurance Co. Weak showing of fair play and substantial justice can sometimes outweigh a sufficient showing of purposeful availment Asahi Metal Industry v. Superior Court Venue Can be challenged only in a pre-answer motion or answer, or it is waived - Rule 12(b)(3), Improper Venue Venue, 28 USC 1391 Venue Generally Venue is proper:

in a judicial district where the defendant resides; if there are multiple defendants, jurisdiction is proper in the district where one defendant resides, so long as all defendants reside within the same state; in a judicial district where a substantial part of the events or omission giving rise to the claim occurred; if neither of these provisions provides a venue, then in a judicial district in which the defendant is subject to personal jurisdiction (under diversity jurisdiction) or where the defendant may be found (under federal question) If an action is amended to include another defendant from another state, original venue is still proper 28 USC 1404, Change of Venue (Forum non conveniens) Subsection (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought Venue can be relocated if proper venue is inconvenient to the parties 28 USC 1406, Cure or Waiver of Defects (Transfer) If plaintiff brings suit in federal court with improper venue, and defendant timely objects, the court can dismiss the case or transfer it to any federal district court in which it could have originally been brought Rule 12(b)(3) Motion for Removal If a case is in state court and there is reason for federal court to have original jurisdiction (federal question or diversity of citizenship SMJ), a Motion for Removal can be made and the federal court must take the case 30 day time limit Defendant has 30 days after receiving written notification of action being filed to file Motion for Removal Complaint must have been filed already Service of Process Service of Process is the Due Process requirement of Notice Due Process Clause requires defendant receive proper notice of suit and an opportunity to be heard If service of process is improper, the court does not have personal jurisdiction Any judgment can then be collaterally attacked in a subsequent proceeding Notice must be given in such a manner that is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections Mullane v. Central Hanover Bank Permissible Methods of Service In state court, plaintiff can only use methods of service specifically authorized by state statute Rule 4(e)(2), Summons (Service upon Individuals Within a Judicial District of the United States Service upon an individual other than an infant or incompetent, from whom waiver has not been obtained and filed, may be effected (2) by delivering a copy of the summons and the complaint to the individual personally (personal service) or by leaving copies thereof at the individuals dwelling house or

usual place of abode with some person of suitable age and discretion then residing therein (substituted service) or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process Registered mail service Publication, in very limited circumstances Rule 4(d), Waiver of Service; Duty to Save Costs of Service; Request to Waive Why would someone waive proper service of process? If one waives the right to service, time to serve answer extended from 20 days to 60 days If a person receives the waiver and fails to waive service, he will be responsible for paying the cost of service A person is given 30 days to respond to the notice Stating the Case The Lawyers Responsibility Bridges v. Diesel Service, Inc. Rule 11(b)(c), Representations to Court; Sanctions (b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief (c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, [subject to Rule 11],impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation The Complaint Bell v. Novick Transfer Co. A federal court is not required to apply state "well-pleaded complaint" rule even when the case originated in state court under state substantive law The Response Motions and Answer Pre-Answer Motions Lack of Subject Matter or Personal Jurisdiction or Improper Venue Rule 12(b)(1)(2)(3) Motions Failure to state a claim upon which relief can be granted Rule 12(b)(6) Motion Motion for more definite statement Rule 12(e) Motion The Answer Denial Rule 8(b)

Affirmative Defenses Rule 8(c) Counterclaims, cross-claims, and third-party claims Rule 13(a)(b)(g) and Rule 14 Amendment of Pleadings Rule 15(a) Sets forth the basic amendment rules and states that leave [to amend] shall be freely given when justice so requires Parties to the Lawsuit and Compulsory Joinder Rule 20, Permissive Joinder of Parties All persons may join in one action as plaintiffs or be joined in one action as defendants if: A right to relief is asserted by, or against, each plaintiff or defendant relating to or arising out of the same transaction or occurrence, or series of transactions or occurrences (logical relation test); and Any question of law or fact common to all the persons will arise in the action Compulsory Joinder (Necessary and Indispensable Parties) Necessary Party Rule 19(a) provides that a person who is subject to Personal Jurisdiction and whose joinder will not destroy complete diversity should be joined in the action if: In his absence, complete relief cannot be accorded among those already parties, or His interest in the subject of the lawsuit is such that to proceed without him may either as a practical matter, impair or impede his ability to protect that interest in a later proceeding, or expose those already parties to the lawsuit to a substantial risk of double, multiple, or otherwise inconsistent obligations Indispensable Party Rule 19(a); When a nonparty should be joined but-for lack of Personal Jurisdiction or diversity destruction Creates indispensable party issue whether, in equity and good conscience, the lawsuit should proceed Rule 24, Intervention A nonparty, upon timely application, may voluntarily become a party to a lawsuit between other parties in order to protect his interest (a) Intervention of right A nonparty must be allowed to intervene when a statute of the US confers an unconditional right to intervene; or when one claims an interest to the property or transaction which is the subject of the lawsuit, and the disposition of the action in the intervenors absence will be likely to impair his ability to protect that interest, and existing parties to the action cannot adequately protect the intervenors interests Federal courts will assert ancillary jurisdiction over claims asserted by one who intervenes as of right, except if it destroys diversity (b) Permissive intervention A nonparty may be allowed to intervene: when a statute of the US confers a conditional right to intervene, or when an applicants claim or defense and the main action have a question of law or fact in common Rule 23, Class Actions

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class (b) Class actions maintainable [. . .] Rule 18 Joinder of Claims and Remedies (a) Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party. (b) Joinder of Remedies; Fraudulent Conveyances [. . .] Factual Development Discovery Butler v. Rigby A legal privilege can be used to protect information from discovery under Rule 26 Rule 26(b)(1) allows parties to obtain discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Rule 26(b)(2) allows courts to restrict discovery if "the burden or expense of the proposed discovery outweighs its likely benefit." Rule 26(c) allows individuals from whom discovery is sought to move for a protective order even if they are not parties to the suit Pretrial Disposition Rule 56, Summary Judgment Houchens v. American Home Assurance Co. A legal presumption (e.g. Mr. Houchens was legally dead) cannot be used to defeat a motion for summary judgment made on the grounds that a party does not have enough evidence to meet his burden of proof Rule 56(c) Motion for summary judgment; granted when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law Summary Judgment 3 forms to file Notice of Motion & Motion itself Memorandum of Points and Authorities (Brief) Affidavits/Declarations Turns on whether or not there is a triable issue of fact Nonmoving party has to show that there is a material issue of fact Trial Norton v. Snapper Power Equipment A judgment notwithstanding the verdict cannot be granted after a motion for a directed verdict has been denied based on the same facts Former Adjudication Claim preclusion Res judicata

A thing adjudicated An issue that has been definitively settled by judicial decision An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been but was not raised in the first suit Three essential elements: An earlier decision on the issue, a final judgment on the merits, and the involvement of the same parties, or parties in privity with the original parties Rush v. City of Maple Heights Whether or not injuries to both person and property resulting from the same wrongful act are to be treated as injuries to separate rights or as separate items of damage, a plaintiff may maintain only one action to enforce his rights existing at the time such action is commenced Issue preclusion AKA Collateral estoppel Litigant is precluded (estopped) from relitigating an issue in a second (collateral) proceeding Dismissal Rule 41(b) Dismissal of Actions; Involuntary Dismissal: Effect Thereof . . . Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits" Appeals Address the correctness of trial court rulings that are likely to have affected the outcome Cannot be used to correct strategic decisions made by counsel during trial or pretrial proceedings Part A The Constitutional Framework for U.S. Litigation Personal Jurisdiction The Origins Pennoyer v. Neff No longer good law, but a good case to demonstrate state sovereignty Rationale 14th Amendment Due Process Clause requires notice on the defendant State courts may entertain suits against their own citizens within the state. State courts may also hear case against non-citizens provided the non-citizens were personally served within the forum. If this occurs, the court acquires personal jurisdiction. However, if the putative defendant is served outside the states boundaries, it violates due process to proceed in the forum

State courts may also proceed against a non-citizen defendant if the defendant has property within the forum and the court attaches or otherwise seizes the property prior to the adjudication. In this circumstance the court acquires quasi in rem jurisdiction The Modern Constitutional Formulation of Power Redefining Constitutional Power Intl Shoe Co. v. Washington [One] will be subject to the jurisdiction of any state with which [one] has "minimum contacts" that make the exercise of jurisdiction consistent with "traditional notions of fair play and substantial justice." Overturned Pennoyer v. Neff, abolished quasi in rem jurisdiction, and created the minimum contacts doctrine In Rem Jurisdiction (Pennoyer court) Jurisdiction over the thing Allows a state to exercise power and authority over a thing physically confined within its borders Two parties can litigate over a thing by bringing suit against that thing Quasi In Rem (Sub-theory) Occurs when defendant owns property physically within forum state State attaches property within the state to the defendant Judgment can be entered up to the value of the property Debt can be attached as well (Harris v. Balk) Creditors can be liable in any state where debtor travels Shaffer v. Heitner A companys stock is said to be located within the state where the company is located Abolished quasi in rem jurisdiction Minimum contacts must exist in order for in rem jurisdiction to attach Specific Jurisdiction: The Modern Cases World-Wide Volkswagen Corp. v. Woodson Placing an inherently mobile product into the stream of commerce does not constitute establishing a minimum contact within a state where unreasonable Asahi Metal Industry Co. v. Superior Court The exercise of jurisdiction against defendant offends the standard notions of substantial justice and fair play depending on Burden on the defendant Forums interest in adjudicating the particular matter Plaintiffs ability to obtain relief Burger King Corp. v. Rudzewicz Traditional notions of fair play and substantial justice are satisfied when defendant purposefully directs his activities at residents of the forum state and the litigation arises out of or are related to those activities Pavlovich v. Superior Court Sliding scale test is used for internet cases Active sites Contact Interactive sites - ? Passive sites No contact

General Jurisdiction Coastal Video Communications v. The Staywell Corp. Internet-based contacts may be evaluated for finding general jurisdiction Burnham v. Superior Court Creation of gotcha jurisdiction A person is subject to general personal jurisdiction of a state if that person is physically served in that state Consent as a Substitute for Power Carnival Cruise Lines, Inc. v. Shute Forum selection clause is not per se invalid, but it will be subject to judicial scrutiny for fairness If clause is clear and not hidden or unconscionable, it may be valid The Constitutional Requirement of Notice Mullane v. Central Hanover Bank & Trust Co. Publication is insufficient process where defendants address is known Did not afford defendants the process due to them Self-Imposed Restraints on Jurisdictional Power: Long-Arm Statutes, Venue, and Discretionary Refusal of Jurisdiction Long-Arm Statutes as a Restraint on Jurisdiction Long-arm statute A statute providing for jurisdiction over a nonresident defendant who has had contacts with the territory where the statute is in effect Gibbons v. Brown Jurisdiction over a non-resident defendant is not proper where the only contact with the state was filing a lawsuit two years earlier against a defendant not a party to the current suit Venue as a Further Localizing Principle Dee-K Enterprises, Inc. V. Heveafil Sdn. Bhd. General federal venue statute subjecting alien corporations to suit in any judicial district [28 USC 1391(d)] overrides other federal statutes that may contain specific venue provisions Declining Jurisdiction: Transfer and Forum Non Conveniens 28 USC 1404, Change of Venue (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought; Piper Aircraft v. Reyno The fact of a substantive law being less favorable to plaintiffs in an alternative forum should not be given conclusive or even substantial weight in applying the doctrine of forum non conveniens Transfer under 28 USC 1404, 1406, and 1631 Federal courts given the ability to move cases within the system without the necessity for dismissal and refilling, which would be necessary under the doctrine of forum non conveniens

Subject Matter Jurisdiction of the Federal Courts The Idea and the Structure of Subject Matter Jurisdiction Subject Matter Jurisdiction (non-waiveable) Term used to denote whether a court can hear a particular type of dispute Two ways to describe the SMJ of a court: General and Limited State System Courts of general jurisdiction Can hear any kind of claim unless legal authority says otherwise Can hear any case not expressly excluded (ie bankruptcy) Federal System Limited Jurisdiction Can only hear cases specifically authorized by the statutes that set up the particular court Federal question jurisdiction (question arises from the law, treatises, etc, of federal government) e.g. Constitutional rights Established in 28 USC 1331 Diversity of citizenship jurisdiction Looks to domiciliary Domiciliary is residence + intent to remain indefinitely Also requires an amount in controversy over $75k Plaintiff can aggregate unrelated claims to satisfy Established in 28 USC 1332 Federal Question Jurisdiction 28 USC 1331, Federal Question The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U.S. Louisville & Nashville Railroad v. Mottley Well-Pleaded Complaint Rule The plaintiff's federal question must appear in the allegations of the complaint, and anticipated defense, involving federal law are inadequate for federal question jurisdiction Diversity Jurisdiction 28 USC 1332, Diversity of Citizenship; Amount in Controversy; Costs

(a) The district courts shall have original jurisdiction of all civil actions where them matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different States; (2) citizens of a State, and citizens and subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, as defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States. For purposes of this section . . . an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled. [. . .] Plain Meaning Rule Where statute can be given effect and its plain meaning applied to the facts, a court interpreting the statute should apply the statute's plain meaning Only when the plain meaning cannot be given effect and applied to the facts, the court should look to the statutes legislative history Saadeh v. Farouki Held permanent residency clause of 28 USC 1332 applies when it will destroy diversity, but not when it will create diversity Supplemental Jurisdiction 28 USC 1367, Supplemental Jurisdiction (a) . . . [In] any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy . . . [such] supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. Jurisdiction over a claim that is part of the same case or controversy as another claim over which the court has original jurisdiction Allows federal district court to exercise jurisdiction over claim and litigants who would not otherwise have subject matter jurisdiction Pendant and Ancillary Jurisdiction Common law equivalent of supplemental jurisdiction

Pendent Jurisdiction Plaintiff asserts a federal claim against defendant and has also joined with that a state claim against same defendant that is related to federal claim (common nucleus of operative fact) Federal claim must be substantial, and Federal and state claims must be so related that they form part of the same case or controversy under Article III of the Constitution Common nucleus of operative fact test Where case arises out of common nucleus of operative fact, pendent jurisdiction applies 28 USC 1367(b) Pendent Party Jurisdiction Allows defendant to implead a non-diverse party while retaining diversity jurisdiction Court cannot exercise pendent party jurisdiction over non-diverse defendant when the only basis for the courts SMJ over first defendant is diversity of citizenship Ancillary Jurisdiction Plaintiff asserts a claim (main claim) which is supported by an independent basis of SMJ (either federal question or diversity) and, subsequently, a defending party joins a claim which does not have an independent basis of SMJ, but which is logically related to the aggregate core of operative facts which constitutes the main claim Rule The ancillary claim must be so related to the main claim that they form part of the same case or controversy under Article III Federal courts may assert ancillary jurisdiction over: Compulsory counterclaims, Proper cross-claims, Additional parties to compulsory counterclaims or cross-claims, Proper impleader claims against third-party defendants, and Interpleader actions and intervention as of right Where the only basis for SMJ over the main claim is diversity, the court cannot assert ancillary jurisdiction over the following claims: Claims by plaintiffs against persons made parties under Rule 14 (third party defendants joined through impleader) Claims by plaintiffs against persons made parties under Rule 19 (i.e. compulsory joinder necessary and indispensable parties) Claims by plaintiffs against persons made parties under Rule 24 (i.e. intervention) Claims by persons proposed to be joined as plaintiffs under Rule 24 (i.e. intervention) Removal 28 USC 1441, Actions Removable Generally (a) [Any] civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. If case could have been heard in federal court originally, it can be removed Where sole basis of SMJ is diversity, case can be removed only if none of the defendants is a citizen of the forum state Where basis for SMJ includes federal question, citizenship not an issue Defendant cannot remove in home state and no removal from federal court to state court All defendants must agree to removal

The Erie Problem (Federal Diversity Cases Only) State Courts as Lawmakers in a Federal System The Issue in Historical Context 28 USC 1652, State Laws as Rules of Decision, Rules of Decisions Act The laws of the several states, except where the Constitution or treatises of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. Swift v. Tyson (Pre-Erie Interpretation) Laws under Rules of Decisions act does not include state judicial opinion State judicial opinion not law, but evidence of law Prevented state judicial opinion from being used in federal court Constitutionalizing the Issue Erie Railroad v. Tompkins In diversity cases or federal question cases not governed by federal law, the federal courts must apply state substantive common law as well as state substantive statutory law, but are free to apply federal procedural law Must treat state decisions as source of law when looking for the legal principles that apply to the case Blended claim (federal and state components), federal law controls federal questions, but statutory law controls statutory claims Policies of Erie Discourage forum-shopping Avoid inequitable administration of the laws Made 28 USC 1652 a constitutional issue Relied on 10th Amendment to give states power Laws should include common law decisions and statutory decisions The Limits of State Power in Federal Courts Interpreting the Constitutional Command of Erie Substance / Procedure Dichotomy Substantive issues require application of state law Procedural issues require application of federal law Guaranty Trust Co. v. York "Outcome Determinative Test If applying/ignoring a state law would be outcome determinative, then that law must be applied Byrd v. Blue Ridge Rural Electric Cooperative Balancing Test In determining whether the federal court is bound under Erie to apply a particular state law, Byrd requires the court to balance (1) the state interest against (2) the federal interest, which is itself diminished by (3) any outcome determinative effect State interest behind applying the state law Affirmative countervailing federal interests Outcome Determinative Test

State decisional law did not apply in federal diversity case where it allowed a judge, and not jury, to determine a factual issue Deconstitutionalizing Erie Hanna v. Plumer Two-part test for determining Erie issue; improvement over Byrd If there is a FRCP on point, then it should be applied, regardless of conflicting state law and the Outcome Determinative Test If there is no FRCP on point, or if the federal rule and state rule can both be applied without the state rule undercutting the federal rule, apply Outcome Determinative Test in light of Eries twin policies Federal Rules of Civil Procedure governing service of process apply to federal diversity cases, notwithstanding conflicting state rule Determining the Scope of Federal Law: Avoiding and Accommodating Erie Semtek Intl Inc. v. Lockheed Martin Corp Federal common law governs the claim-preclusive effect of a dismissal by a federal court sitting in diversity. The law to be applied is the law that would be applied by state courts in the state in which the federal diversity court sits Erie Flow Is there a FRCP or federal statute on point? Yes Federal law applies unless it violates 28 USC 2072 REA or the Constitution No Next question Is the state rule bound up with state-created interests? Yes State rule applies No Next question Would applying the state rule dictate the result? Outcome determinative? Yes Byrd balancing test (state interest v. federal interest in light of outcome determinative effects) No Federal rule applies Part B The Process of Litigation Incentives to Litigate Litigation in the United States at the End of the Twentieth Century How Much Litigation? Why Litigate? Substitutionary Remedies Compensatory Damages Damages sufficient in amount to indemnify the injured person for the loss suffered An amount awarded to a complainant to compensate for a proven injury or loss; damages that repay actual losses Liquidated, Statutory, and Punitive Damages Gore v. BMW

Punitive damage awards that are "grossly excessive" violate the Due Process Clause of the Fourteenth Amendment Three Prong Test for Appropriate Punitive Damages Degree of reprehensibility of defendants actions Disparity between harm to plaintiff and punitive award; ratio of compensatory damages to punitive damages Difference of this remedy and remedy (civil penalties) in other cases State Farm Mutual Automobile Insurance Co. v. Campbell Few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process, but will be taken on a case-by-case basis Specific Remedies The Idea of Specific Relief Replevin Repossessoin of personal property wrongfully taken or detained Injunctions Court order commanding or preventing an action Ejectment Ejection of an owner or occupier from property Specific performance Court orders parties to a contract to perform An Excursus on Equity and Specific Relief Is There a Remedial Hierarchy? Sigma Chemical Co. v. Harris The determination whether to issue an injunction involves a balancing of the interests of the parties who might be affected by the court's decision Declaratory Relief 28 USC 2201, Creation of Remedy (a) [A]ny court of the US, upon filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such 28 USC 2202, Further Relief Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment Rule 57, Declaratory Judgments The procedure for obtaining a declaratory judgment pursuant to 28 USC 2201, shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar Financing Litigation The American Rule Absent an agreement otherwise, each party pays its own legal fees Opposite English Rule, where (in purest form) the losing party pays both its own fees and those of the other side Insurance and the Contingent Fee Insurance companies often provide legal defense as a policy benefit Many plaintiffs attorneys provide services on contingency basis

Public Subsidies and Professional Charity Remittitur The process by which a court reduces or proposes to reduce the damages awarded in a jury verdict; a courts order reducing an award of damages From Fee Spreading to Fee Shifting The Common Fund By Contract By Common Law By Statute Evans v. Jeff D. The civil rights fee shifting provision (42 USC 1988) does not prohibit settlements conditioned on the waiver of fees Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources Provisional Remedies Relief pending final adjudication of a dispute; legal systems response to need for timely remedy Judge must base decision to grant provisional remedy on incomplete information Two problems How should a court decide whether to grant temporary relief when all the relevant information is not yet available? When does the curtailment of ordinary procedures in granting provisional relief amount to a denial of due process? Preliminary Injunctions and Temporary Restraining Orders: The Basic Problem William Inglis & Sons Baking Co. v. ITT Continental Baking Co. Plaintiff entitled to preliminary injunction only if court finds Plaintiff will suffer irreparable injury if injunctive relief is not granted, Plaintiff will probably prevail on the merits, In balancing the equities, the defendants will not be harmed more than plaintiff is helped by the injunction, and Granting the injunction is in the public interest Alternative test One moving for a preliminary injunction assumes the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor Provisional Remedies and Due Process Fuentes v. Shevin Absent extraordinary circumstances, in order to comply with procedural due process, notice and an opportunity to be heard must be provided prior to seizure of any protected property interest Pleading

Pleading Rule 8 General Rules of Pleading (Notice Pleading) (a) Claims for Relief (requirements): (1) a short and plain statement of the grounds upon which the courts jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks IN OTHER WORDS: (1) A jurisdictional allegation; (2) A statement of the claim; and (3) A demand for relief - Relief in the alternative or of several different types may be demanded Documents to file Complaint Counterclaims, Cross-claims, Third-Party claims, etc. Pre-answer Motions Rule 12(b)(1)/(2)/(3) Lack of SMJ, PJ, Improper Venue Rule 12(b)(4)/(5) Insufficiency of Process/Service of Process Rule 12(b)(6) Failure to State a Claim Upon Which Relief Can Be Granted Rule 12(e) Motion for More Definitive Statement Answer (Specific & General) Specific Answer requires defendant to admit or deny, on a paragraph-by-paragraph basis, each allegation of the complaint Required in federal court General Answer allows defendant to make general denial of all allegations The Functions of Pleading Haddle v. Garrison: Complaint Haddle v. Garrison (S.D. Ga. 1996) A Rule 12(b)(6) motion will be granted if no set of facts in support of plaintiffs claim will entitle plaintiff to relief Haddle v. Garrison (11th Cir. 1997)

A Rule 12(b)(6) motion to dismiss should be denied if any set of facts alleged in the complaint will entitle plaintiff to relief Haddle v. Garrison Ethical Limitations Walker v. Norwest Corp. Christian v. Mattell, Inc. Special Claims: Requiring and Forbidding Specificity in Pleading Stradford v. Zurich Insurance Co. Rule 9(b) Pleading Special Matters (Fraud, Mistake, Condition of the Mind) In all averments of fraud or mistake, the circumstances constituting fraud or mistake (time, place, and nature of the [alleged] misrepresentations) shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. Allocating the Elements Gomez v. Toledo Qualified Immunity based on good faith is an affirmative defense and thus the defendant has the burden of pleading it The plaintiff is not required to plead bad faith 1