Civil Procedure Video 1 Notes

 There is no right answer, just guide the examiner in steps: Analytical framework

Module 1 (PJ)

 Personal Jurisdiction- The courts power over the parties not over the case
 For due process purposes- The court must have power over the parties, the court always has
power over the plaintiff because they initiated the claim and consented.
 Due Process- The court must have jurisdiction of the defendant or else any judgement would
be void.
Module 2: (Notice)

 Due process requires us to have personal jurisdiction, must give the defendant notice and
an opportunity to be heard
 Service of Process- the way we give notice

Module 3:

 Subject matter jurisdiction- The courts power over the case not the parties

 Does the court have the ability to hear the case?

 Federal Courts only have limited jurisdiction such as diversity of citizenship and
federal question- (only certain kinds of cases even if the parties want to they
can’t)
A) Diversity Jurisdiction
B) Federal Question

Module 4

C) Supplemental Jurisdiction- Common Nucleus of operative facts

D) Removal Jurisdiction
E) Conclusion to Subject matter Jurisdiction

Module 5: (Erie)
Erie Doctrine- Related to subject matter jurisdiction when in a federal court.
 Does the Federal Judge have to apply state law?
 Always comes up in federal court and in order to be in federal court its usually
related to diversity.
 So which law do you apply? State law/federal law? That’s where the Erie
Doctrine comes into place
All these 5 modules are related to if we are in the right court at all, assuming we are, what
law is going to govern. They deal with forum selection & the governing law.

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 The rest deal with the litigation process

Module 6:
 Pleading- Get the lawsuit started
o The documents we file setting forth our claims & our defences

Module 7:
 Joinder- tells us how big the law school will become going to be, such as how many
defendants or plaintiffs can be in 1 single case.
o Joinder rules: Counter claims, cross claims, cross action, impleader, class action
 (related to pleading as it gets the law suit started and joinder gets the parties
into a single cases)

Module 8:
 Discovery- What the parties know about each other case and discover relevant material
 The case is going along in the litigation stream, we are in the right court,
discover allows what the other parties knows about the case.

Module 9:
 Adjudication- Who wins, maybe without trial
 We are in the case, in the right court, past the pleading stage, doing discover
and now adjudicate such as who wins. Maybe it’s done without trial based on
summary judgment, or with trial. Right to a jury trial. We are in the litigation
stream of who wins.
 Summary judgment

Module 10:
 Appellate review- States of appeal-
 We have gone through the litigation stream in the trial court, now we have
come to a judgment on if we can get review of that judgment from a higher
court
o In federal court system the trial court is the federal district court & the appellate
court is the US Court of Appeals
o What sources of issues we can take up to the Federal Court of Appeals for appellate
review

Module 11:
 Preclusions- Res Judicate and collateral estoppel
o Claim or issue preclusion is about the effect of the judgment that is issued by the
trial court
 We have gone through all the litigation stream and we have a judgment entered
in a case & now there is another case pending
 Under preclusion doctrine the question is whether the judgment in case 1
precludes us/ stops us from litigating anything in case 2. It might do that with

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 claim preclusion or issue preclusion or it may narrow the scope of litigation in
the 2nd case

CIVIL PROCEDURE VIDEO 2 MODULE 1:

Personal Jurisdiction (PJ) (Adjudicatory jurisdiction, Territorial
jurisdiction)

When answering a PJ question the first thing you ask is:

1. Is there a Statute that allows PJ in the state?

2. Would JD be Constitutional? - is it in the Due Process Circle

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 3. Does a traditional basis apply- was the defendant served with process in the form,
domicile, consent-?
a. if it is a traditional basis use the cases and the split judgments by the justices.

 Can the plaintiff sue the defendant in this state?

 Whether in Federal Court or State Court

 The Court must have power over:

 The defendant himself or
 Defendants property

 3 types of Jurisdiction:

 In Rem Jurisdiction- Courts has the power to adjudicate the rights of ALL
persons in the world with respect to a particular property or item.

 Quasi in Rem- Does not have power over the defendant himself but the
defendant has property in that state and the court has power of that property.
Courts have the power with a particular individual because of a specific property.

 In Personam Jurisdiction- The court has power on the defendant himself

because he has either done something there or has some connection with the
forum meaning state. (could be because he sent a product, served with process
there, caused in effect there) They could have power over a defendant him
because of connection with that state. (Most import)

Personam Jurisdiction will be either general or specific:

 General- They can be sued in this State for something he did anywhere in the world.

 Specific- A claim that arises in the forum.

 EXAMPLE: You have a claim in NY for something you did in NY.

 How do we know the court has all this power?

 Its set by Due process Clause of the Constitution- It sets the outer boundary of
how far a court can go.
 Due Process Clause States: that we always have to have personal
jurisdiction of the defendant
 Due process makes a circle and if we are in that circle the courts
judgments will be valid. However, outside the circle the judgments will
never be valid.

Step 2: The State where we sue must have a Statute that allows for PJ. As the state
doesn’t need to use all the power the Due Process gives them they can pick and
choose what they want to use. PJ is not self-executing, they have to have the power
from a statute.
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Cases: Don’t not write a history exam but use the cases as Principles in a PJ. For defining
rules principles and guidance.

1) Pennoyer 1878- Traditional Basis of Personam Jurisdiction

Mitchel V. Neff- Pennoyer v. Neff involved a collateral attack on a prior default judgment.
In the initial suit of. Mitchell v Neff
 Pennoyer Case: Was a decision by the Supreme Court of the United States in which the
Court held that a court can exert personal jurisdiction over a party if:

1) The Defendant is served with Process in the forum (present in the forum
when served with process). This gives the court general jurisdiction

2) Defendants agent can be served with process and it will have PJ over you.

3) The defendants is domicile in the state

4) The defendant consents to jurisdiction

 This was difficult because the defendant had to be in the forum in order to get served.
Some a Defendant could commit an act in another forum and then never go back.

2) S v Pulaski 1927-
Guy from Pennsylvania drove to Massachusetts and hit a pedestrian in and from
Massachusetts. Plaintiff wants to sue Defendant in Massachusetts but he went home so
she can’t serve him in the forum.
 Non-Resident Motorist Act. - Present in every state which state by driving in our
state you are consenting to jurisdiction.
 The Defendant could now be served by an agent
 This case established implied consent as he drove in Massachusetts
 Now PJ is satisfied because he committed a crime in that forum
 When transferring the line of another state you are consenting to jurisdiction when
committing a crime there and appointing an agent to serve you.
3) International Shoe Co. Case 1945 -
 You can serve process outside the forum. An agent can serve the process. Defendant
is subject to the jurisdiction of a state court if it has "minimum contacts" if the
defendant is not present in the forum so the exercise of jurisdiction does not offend
fair play and substantial justice of the traditional rule.
2-part test: Contact part and fairness part:
 1) Is there a relevant contact between the defendant and forum?
 2) fairness

4) Mc Gee 1957
 California had jurisdiction over Texas Insurance company even though he only sold
1 contract of insurance in California. Still had minimum contact.
 States interest- California still has an interest

5) Hanson V Denckla 1958-

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  Personal jurisdiction must be supported by minimal contacts, which means that the
defendant must have purposefully availed itself on the forum of the privilege of
conducting activities in the forum state, taking advantage of the benefits and
protections of its laws. It cannot be by accident or by a Unilateral act of a 3rd party.

6) Worldwide Volkswagen 1980-

 NY family purchase a car in in NY and was going to move the family and drive to
Arizona. They were in a car wreck in Oklahoma and sued on a product theory. That
the car was effectively designed and caused a fire. They cannot sue the NY
distributor or reseller in Oklahoma. No purposeful availment and no relevant contact.
Yes, it was foreseeable that something could happen to my product and it could hurt
someone in that state and I would get sued there.

7) Colder case of 1984-

 The defendant has to reach out to the forum however that does not mean that he
actually needs to step foot in the forum
 2 defendants in Florida write and edit an article about an actress in California it was
published in the National caused defamation. Aimed at harming her in California
 She sued them in California, it did have jurisdiction even though they did not step in
California their activities in Florida caused in effect in California
 This is called the Colder Effect Test

8) Walden 2014 Case

 No effect jurisdiction in Nevada over a Georgian police men. The Georgine police
men seized property working at the Atlanta airport belonging to Nevada folks on
their way back home. The seizure was wrongful and the Nevada folks tried to sue by
saying there was an effect in Nevada, there is no jurisdiction because the police man
did not hold out to Nevada. It is not enough to have a relationship with people who
live in Nevada, they have to show that the police men targeted someone living in
Nevada. Like the writer who targeted the actress.
9) Burger King 1985 Case
 Contract case in Florida, where Burger king tries to sue 2 case who ran a Burger king
franchise in Michigan. They are subject to jurisdiction in Florida because:
There is a contact part- Must be a relevant contact
o They contacted Burger king in Florida they have a 20-year franchise contract in Michigan

Fairness part- They argued it’s not fair because 2 little guy guys have to go all the way to
Florida to deal with a huge corporate.
o The courts said the burden is on the defendant to show that the forum is
unconstitutionally inconvenient and unfair
o Due process does not guarantee the defendant the most convent forum just that it is not
unconstitutionally bad.
o Jurisdiction is satisfied

10) Ashadhi Case 1987

 Stream on Commerce- I make/manufacture valves in state A. I sell them to a widget
maker in state B. The widget maker then puts his widgets in state A’s valve. State B
widget maker then sells the double product to state C, D, E. My valves were sold in
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 those states and I did not sell them there. One of my valves explode in State D. Do I
have relevant contact with state D?
2 Different Theories fact patters: because the judges could not decide it was a 4/4 and the 9th
didn’t want to vote. No valid answer but 2 possible theories.

 Justice Brenin-It is a contact: If I put a product into the stream and is it reasonable
anticipated that it will get to C, D, E. (4 justices thought so)

 Justice O Conner-It is not enough contact: You need what Brenin said PLUS an intent
to serve states C, D, E. You must show in addition to what Brenin required that you
targeted states C, D, E, by reaching out to serve them by advertising there, providing
customer service. Without that extra activity there is no purposeful avialment therefore
no contact.

11) Mcintyre in 2011

 Supreme Court went back to Stream of Commerce
 English company manufacturer enormous metal shirring machine and sells them to
Ohio.
 The Ohio company then sells these machines to different states including New Jersey
 The plaintiff was working with one of the machines in NJ and was badly hurt, he
wants to sue the English company in NY. Supreme court held there in no jurisdiction
because the English company did not target New Jersey, didn’t advertise there or
have customer there
 Justice Bryer & Justice alito both agreed on no jurisdiction but for a different reason
such as only 1 machine was sold there so not a stream of commerce
 3 others justice- agree with Justice Brenin.
 Other theories still valid
12) Burnham Case 1990
 Nj citizen sued in California and was served process while he was in California
and the claim asserted against him arose in NJ. That means that jurisdiction in
California is only okay if there is General jurisdiction.
o Does presence when served with process give general jurisdiction? Or
o Do we have to asses it under international shoes? Or
o Is the traditional basis of Pennoyer still good law on their own or have
they been replaced by international show?
2 Theories:
 They both agreed that the is General jurisdiction but one agreed under traditional
basis and the other under International Shoes case.

 Justice Scalia- Presence when your served is okay by itself and is because of its
historical pedigree (it has always been the law and good law). International shoes (test is
if the defendant is not present in the forum) case is irrelevant and an alternative you can
use if you don’t have a traditional basis.

 Justice Bryin- Traditional basis do not matter they are gone must apply international
shoe to all cases.

Types of Jurisdictions: General and Specific Jurisdiction:

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  General Jurisdiction – Is the defendant is sued in a forum on a claim that arose
anywhere in the world.

 There is General Jurisdiction over a defendant who has

Continuous and systematic ties to the forum. If a company is
doing a lot of business in the forum it has GJ in the forum

 Specific Jurisdiction- The defendant is sued in a forum on a claim that arose in the
forum

This has Changed after the 2 cases of:

13) Goodyear 2011- Which states you have to be essentially at home (domicile)

14) Daimler in 2014- You have to be in your Domicile (At home)

 The Supreme court Limited General Jurisdiction by stating that a defendant is
ONLY subject to general jurisdiction when the defendant is in his domicile
 There has to be Continuous and Systematic ties with the forum. However, this
is not enough, they have to be so systematic and continuous that the
defendant is at home in the forum.
 What is domicile home? –
o We are at home in the state of our domicile and can’t be sued in a claim
that happened anywhere in the world.
For a Corporation:
 They have limited general jurisdiction as they can have 2 places:

1) Where its incorporated

2) Principle place of business- The Headquarter or where decisions are made

Example:
 Before Goodyear and Daimler- Walmart corporation should be subject to general
jurisdiction in California because it has thousands of stores and employees there which is
continuous and systematic.

 After Goodyear and Daimler -there is no general jurisdiction in California. Walmart is

subject to General Jurisdiction in Delaware where it is incorporated and Arkansas where
it has its principle place of business and nowhere else. It has limited general Jurisdiction.

How to answer a Question on Personal Jurisdiction using these cases:

Constitutional limits on Personam Jurisdiction
 If there is no traditional basis or if there is. You should always use International Shoe
co. case to analyse 3 steps:

1) Is there a relevant contact between the defendant and forum?

o Purposeful availment- The defendant must have reached out to the forum, D must
have availed herself in the forum in some way, the contact between her in the

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 forum must result from her activity in the form like in MC gee Texas company
solicited in California
o The contact cannot be because of a unilateral 3rd party as in Worldwide where it
was the plaintiff who drove the car into Oklahoma the defendant didn’t send it.
o The defendant does not need to step foot there like in Colder where the defendant
caused in effected there causing harm to someone in the state
o It must be foreseeable that the defendant could have foreseen getting sued in the
state. In worldwide is it not enough that it was foreseeable that the product would
get there got to be foreseeable if they would get sued there.
o Is there a relevant contact in a stream of commerce??? Brinin approach and O
conner approach
o If we assume there is a contact we then go to relatedness
o Does the plaintiffs claim rise from the defendants contact with forum??? Yes-
Specific Jurisdiction
o No- General Jurisdiction- only where the defendant is domicile
 If has at home then gj

2) Is Jurisdiction Fair??
 THIS STEP ONLY APPLIES IN SPECIFIC JURISDICTION- courts made this
clean in Dymler case
 If the defendant in at home in general jurisdiction than its fair

5 Factors to Suggest Fairness:

1) Burden on the Defendant- Burger king case- it is on the defendant to show that this burden
is unconstitutional, severe disadvantage

2) Forums Interest- Mcgee case- (state might have an interest stating that they have been
ripped off by out of states so we want to provide a courtroom for our own
people)

3) Plaintiff Interest- Injured and cannot trival

4) Legal System Interest in Efficiently- Maybe a good jurisdiction/forum because all the
witness lives here

5) Shared Substantive Policy of the State-

 15) Kulko case- turned down jurisdiction because of shared
substantive policy of the state because if we accept jurisdiction in
this case it will upset family harmony.

Section 1 a) – How to Answer a Question on Statutory Limits on in Personame Jurisdiction

(Start with this before the Constitutional)

1) Is whether there is a state statute that allows jurisdiction in this case. A statute
passed by the state in where the suit is filed. That is true whether in the state or
Federal court does not matter.
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 2) Federal courts power to exercise personal jurisdiction is limited to the same state in
which the federal court is set. So, we have to have a state statute that would allow
the exercise of Personam Jurisdiction
 Every state has statutes that allow Personal Jurisdiction based upon the traditional
Pennoyer case basis, every state says it’s okay to have jurisdiction over someone
if: (Chart on pg. 4 mini review)

1) Served with process in the forum or defendants’ agent can be served with process
and it will have PJ over you.

2) The defendants are domicile in the forum

 These are usually General Jurisdiction Statute, so you can be sued in a claim that
arose anywhere
3) The defendant consents to jurisdiction
 They also have Non-residence Motorists Statutes based on implied consent. So, if
you get into an accident in that state they have general jurisdiction over you.
4) Long Arm Statute
 These Statutes allow for suits against non-residence who are not domicile in the
forum
 The Long Arm Comes in 2 Types:
o California Long Arm: Our courts have jurisdiction to the full extent of
the constitution, so there is no real separate analysis because they use the
constitution. Most states don’t have this.

o Most states have: A Laundry list Long Arm, these Statutes list various
activities that a non-resident can do in the forum and if he does them in the
forum it gives rise to specific jurisdiction.
 Example: We have long arm Jurisdiction over a non-residence
who transacts business in the forum and if that non-resident comes
in and transacts business and harms you, that gives specific
jurisdiction.
 She conducted business in the forum

 Most States have different long arms and they can be interpreted in different ways.
o For Example: If the defendant commits a tort in the forum
 DAN manufacture widgets in state A. BOB live in state B. DAN
orders a widget from BOB in state A and DAN sends it to State B.
DAN has marketed directly to BOB by reaching out directly to
state B(this is not stream of commerce). DAN’s widget exploded
and injures BOB. BOB want to sue DAN in state B.
 Statute in state B states that they have jurisdiction over a non-
resident who commits a tortious act in state B.
 Did DAN commit a Tortious act in state B?
o Split answers:

16) Gray V American Radiator Case: 2 different views:

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  Illinois supreme courts view: states they did commit a tort in state B
because the injury was in state B. As long as the injury was in state B DAN
committed the tort in state B and you got him under the Long Arm.

 New York courts read the same language and did not agree. They stated that
DAN did not commit the act in state B because he didn’t do anything in state
B. If He was negligent it was in state A where he manufactured the widget.
So, it would not be met and there would be no Jurisdiction in that Long Arm.

After you decide that there is a Statutory basis for general Jurisdiction
then you do the constitutional analysis which is listed above!!!

 Section B- The courts don’t have Jurisdiction over the defendant himself but over the
defendant’s property. That’s why it is always preferred to have In Personam Jurisdiction.
But maybe you can’t because of the Long Arm Statute is labeled very narrowly but if the
defendant has property in the forum then we can use that as the jurisdictional basis.

Property can be anything such as:

 Land
 Wrist watch
 Money

 In Rem Jurisdiction- The law suit is about who owns that very property. We are using
property as our jurisdictional basis and the suit is about who owns that. Does it belong to the
defendant or the plaintiff?

 Quasi in Rem Jurisdiction- The law suit has nothing to do with who owns the property
because everyone knows who owns it and that does matter. This would have been In
Personum Jurisdiction if we were able to get it.
 Example: Pennoyer Case- Was about an
underlining judgment in a case called:
17) Mitchell V Neff -if the judgment was valid? Mitchell had a claim against Neff for breach
of contract, he could not get In Personum jurisdiction because he was no where to be
found. Neff had land in the forum in Oregon so he sued in Quasi in rem. He used quasi in
rem because it was not about the property as he knew Neff owned the property, it was
about a breach of contract and we use that as the jurisdictional predicate for this breach of
contract case.
 According to the Supreme court it would have worked if:
 Oregon Court had seized that property at the outset of the case and it did not
 The Court did not seize the property until later in the case which is no good

In Pennoyer- In Rem and Quasi in Rem- It was okay in terms of jurisdictional basis, if the
property owned by the defendant is seized at the outset of the case.
 Is that the law today?- NOT completely

Questions on Present In Rem Jurisdiction & Quasi in Rem Jurisdiction:

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 1) We got to have a statute & the long Arm Statute don’t apply like In Personam. Here
it will be an attachment Statute every state has one and they are pretty similar. It
allows the state to seize property that the defendant owns or claims to own.
2) Now you have to do the constitutional analysis and the key case here is:

 Shaffer V Heitner 1977- Shaffer says that seizing the property at the outset is not
enough. The court does have to seize the property at the offset of the case like in the
Pennoyer case.
 But Shaffer adds: Must also show that the defendant meats International Shoe
Co. case.
 The defendant must have such minimum contact with the forum so the
jurisdiction is fair
 The constitutional test for In Rem and Quasi in Rem- is the same as in
personam in International Shoes.

Video 2 Subject Matter Jurisdiction

 Personal Jurisdiction is about the courts power over the parties

o It tells use if a particular plaintiff can sue a defendant in a particular state.

 Subject Matter Jurisdiction is about power over the case.

o In what court in that state is the plaintiff going to sue? When we go to Michigan
are we going to sue in the Michigan State Court or Federal court?

1) We have a forum that has Personal Jurisdiction over the parties, now do we
have subject matter jurisdiction? Which court can we hear this case Federal
Court or State Court?

 Federal Court and State Court have different subject matter jurisdiction:
o State Courts – General Subject Matter Jurisdiction (GSMJ)
 They can hear any kind of case

o Federal Courts- Limited Subject Matter Jurisdiction (SSMJ)

 Article 3 in the Constitution gives Federal courts jurisdiction only a very
limited number of cases such as: Diversity Citizenship and Federal
Question
 Constitutional Limit, even if you want to go to the Federal Court
 Even if the plaintiff meets the requirements (even if there is a federal
question) the plaintiff does not have the option to go to State Court
 UNLESS: it has to do with bankruptcy and patent infringe Pg.13.

A) Diversity of Citizenship Jurisdiction-

A way to get a case in the Federal Court

Section:1332 A1 of the Judicial Code, is NOT a Federal rule it is a statute passed by statute.
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  Requirements:
1) Complete Diversity Rule- From different state
2) Exceeds $75,000,00

 Strawbridge V Curtiss 1806 Case- The Plaintiff citizenship and Defendants Citizenship have to
be from different states. Plaintiffs can be from the same state and defendants can be from the
same state.
 A US Citizenship is a citizen of the US state where she is domicile
 Every human has a domicile and you only have 1 domicile at a time
 You can change your domicile if you physically go into a new state and
form an intent to make that your permeant home such as buying a house
there or gets a job there, registers to vote there. They have to show intent
and domicile will change by retaining it until you affirmatively change it.
 Example1 An individual: Stacy is domicile in Oklahoma and graduates
high school. Then decides to go to College in New York,
moves to New York for 4 years. Then decides to go to law
school in Wisconsin for 3 years. She then decides to go to
medical school in Washington. Her domicile is still in
Oklahoma because she never had the intent to make those
states her home and could return to Oklahoma even though she
hasn’t in 11 years.

Corporations have 2 different states Citizenships:

 A Corporation: (don’t use domicile): Defined by Statute 1332 C1-

 Corporations Citizenship is a citizen of ALL states where it is incorporated
(usually its only 1).
 Corporations are also a citizen of the 1 state where it has its principle place of
business.

 Hertz Corp. V Friend 2010- Only 1 Principle Place of Business(PPB). What is the
principle place of business ?
 Courts trying to decide if its: 1) where all the decisions are made (nerve center)
or where most activities take place (muscle center). This case defined what is
meant by a PPB.
 The Courts decided: Its where the mangers(board of directors) direct, control and
coordinates corporate activates, usually the headquarter where the directs are) (it
is the nerve center)

Unincorporated Businesses Citizenships (partnerships, limited Liability partnership)

o Not in a Statute but the court said you use the citizenship of all of its members
o Not where it was formed, not PPB
 Example: A law firm that is a partnership and all the partners are
from 18 different state. What is there citizenship? It’s
the citizenship of all its members. The partnership
itself it’s the same citizen of all those 18 states.

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 2) It is not enough to just meet the Diversity rule; the case also has to exceed
$75,000,00
 If you want to take it to federal court it has to be $75,000,001
 Whatever the plaintiff claims will govern unless it is clear to legal to a legal
certainty that she cannot recover $75,000,00 (this is very rare unless)
 Example: You have a statute that limits the recovery: For this
particular case you cannot recover more then $50,000.
It would then be dismissed because it is clear with legal
certainty as it is a matter of law that she cannot recover
more.

Aggregation- is where we must add multiple claims in order to get to over $75,000,000.
 If you have to add claims to get to the $75,000,001 then you have an aggregated
issue.
 Example: P sue D on 2 claims: 1 P and 1 D
 P sues D for $40,000,001 for breach of contract
 P sue D for totally unrelated claim for $50,000,00
 The only way to get to the federal court is to add them
together
 Yes, we can aggregate them because its only 1 Plaintiff v 1 defendant
even if the cases are unrelated but as long as they are the same P and D

 Cannot aggregate if we have multiple parties on either side

 Example: P wants to sue 2 different defendants to get to exceed
$75,000,000 you cannot do this because you cannot
aggregate if its multiple D or P

 With a joint claim you can use the total value of the claim (the number of
parties is irrelevant)
 Example: Professor gets beat up by 5 students, they are all tortfeasors
and my damages are over $75,000,001. Can he sue them
all together?
 Yes, because it is a joint tort teaser claim, they are
all equally liable
 It is 1 claim and they all have joint liability

B) Federal Question Jurisdiction-

way to get a case in the Federal Court

Section 1331 of the Judicial code:

 Citizenship is irrelevant, if it is less than $75,000,001, It can still go to Federal Court if
it’s a Federal Question:
 Federal Question is a claim that arises under Federal Law
 It is not enough that the complaint raises federal issues

 The Well Pleaded Complaint Rule- the claim itself has to arise under federal law

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  To figure out if it’s a federal question:
 Is the Plaintiff enforcing a federal right?
 If its yes then it could go to federal court

 Mottley Case 1908- Mottley were passengers on a railroad and were injured by the
railroad and sued for a life time pass.
 Congress passes a law that states railroad cannot honour free passes ( it’s a federal
statute)
 Mottleys sue the railroad company because they:
1) Breached the contract for not giving us life time passes

2) This new statute does not apply to us

 Yes, there is statute in it but it can’t go to federal courts because the claim does not
arise under federal law
 Are the Mottleys enforcing a federal right? No, that federal statute gives the
motleys no right. It takes away rights from the Mottleys. They are not suing to
enforce federal law.
 When you look at the claim its only breach of contract not enforcing a right but not
having it apply to them would not be a federal question claim.

C) Supplemental Jurisdiction

Section 13 67 in the Judicial code

DOES NOT GET A CASE into federal court only diversity and federal question do

 The case is IN federal court which means it invokes federal question and
diversity, so it’s in federal court. In that case there maybe additional claims.

 For every single claim in a federal court there must be federal subject matter
jurisdiction

 If it doesn’t have federal question or diversity you can get the claim in federal
court by invoking supplemental jurisdiction

 Supplemental Jurisdiction does not get a case into federal court it gets claims into
federal court

 These are claims that could not get to federal court by themselves because they do
not a federal question or meets diversity.

 United Mine Workers v Gibbs case 1966- Labour disputes in coil mines in Appalachia.
Plaintiff was a citizen from Tennessee asserted 2 claims against a defendant who was also
a citizen from Tennessee. One of the claims arose under Federal Labour Laws and the
other arose and invoked federal questions. The second claim arose out of state law.
Importantly they both arouse from the same real-world event such as in the coil mind in
Appalachia.
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Claim 1: Plaintiff (TN) -----Federal Question-- Defendant (TN)

Claim 2: Plaintiff (TN) ------State Law--------- Defendant (TN)

 Claims in Federal Court must be assessed for subject matter jurisdiction, claim number 1 is
satisfied as it invokes federal question jurisdiction so the case is properly in federal court.
 Claim 2 does not invoke federal question as its state law and it does not invoke diversity as
both from P & D are from Tennessee. This claim can never go to federal court by itself.
 The courts said in the Gibbs case that the federal courts could here this case because they do
have Supplemental Jurisdiction (pendent jurisdiction) over that claim.
 When a federal court takes jurisdiction, it takes jurisdiction over an entire case. There is
supplemental jurisdiction over the state claim as it’s part of the same case as the federal
question claim, it’s part of the same overall dispute that got the case into federal court
 You get supplemental jurisdiction if the claim shares a “Common Nucleus of operative fact”
with the claim that got the case into federal court
 This is satisfied because claim 1 and claim 2 came from the same real-world event
 State law claim has Supplemental Jurisdiction and could go to Federal court even though it
would be able to by itself

1) Does 1367 A grant Supplemental Jurisdiction over this claim?

 Yes, if it meets Gibbs- “Common nucleus of operative facts”
 This will always be satisfied if the claims both arise from the same
transaction or occurrence

2) Does 1367 B Take away Supplemental Jurisdiction? (Diversity only)

 Only applies to cases that got into federal court by diversity of citizenship it does
not apply to federal question.
 In diversity cases it kills supplemental jurisdiction cases by the plaintiff not
claims by the defendant.
 In the statute there is particular kinds of claims by plaintiffs that are taken away
(removed) from supplemental jurisdiction against Pg.7 persons joined under
Rule 14, 19, 20, 24 and Rule 19- plaintiff and Rules 24- intervenor plaintiff
 Only by claims by plaintiff under there rules

Example using Gibbs:

1) In section 1367 A does it have supplemental Jurisdiction?
 Yes, it has a “Common nucleus of operative facts”

2) Does 1367 B take away supplemental jurisdiction from Gibbs?

 No because it does not apply in federal question cases only in diversity cases.
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 D) Removal Jurisdiction-
 D sued in state court, with removal D can have the case transferred to federal court system
 Removal only transfers from state court to federal court by the defendant only (it is a
transfer don’t use this term)- Not plaintiff
 No permission required, D needs to file a notice of removal & follow rules in the statute
 If the plaintiff thinks the removal is improper the plaintiff will move to remand the case
back to the state court.
 Removal is a one-way street, it can only be removed from state to federal not from federal
to state
 There are 3 statutes that are relevant from removal, sections: 1441, 1446, 1447 those
statutes boil down to 5 basic rules: (GOOD ESSAY TOPIC)

1) General rule is that the defendant can remove, if the case could have been brought in
to federal court in the first place (if it meets the requirement for federal question or
diversity).
 Exception: Cannot remove Diversity Case if Defendants is a citizen in the
forum. (in state defendant rule)

Example: Plaintiff (South Carolina) - Defendant 1 (New York) Defendant 2 (Georgia)

 Suing for 1 billion dollars in a Georgia state court

Can the Defendants Remove? It meets all the requirements for diversity.
 However, it will not be removed because one the defendants are from the state and it
meets the in-state defendant rule. Defendant 2 is from Georgia where the state court is.
 It would be blocked.
 If you had a federal question case it would be able to remove.

2) You must remove within 30 days of service of process(when the defendant is served with
process 30 days from that day)
 The 30-day removal starts fresh for ever newly served defendant added to the
claim.
 Example: We serve process on D1 on February 1 and then serve process on
D2 on February 29- the 30 days starts on February 29.

3) All defendants who were served with process must join in the removal?
 only who have been served not the ones who are listed and not served)

4) The 30-day removal starts fresh for ever newly served defendant added to the claim.
 Example: We serve process on D1 on February 1 and then serve process
on D2 on February 29- the 30 days starts on February 29.

5) You can remove only to the federal district that embraces (geographically embraces) the
state court where the case was filed.

E) Conclusion to Subject Matter Jurisdiction

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  How we get a case in federal court?-
o Diversity or federal question
 We may join additional claims with supplemental jurisdiction
 Or we might have got into federal court because of removal

Civil Procedure Video 3- Venue

What is the difference between subject Matter jurisdiction and Venue?

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  SMJ- tells us that we can go federal courts, certain cases invoke subject matter
jurisdiction
o Tells us to go to federal court but doesn’t tell us which one

 Venue- Tell us exactly which federal court we go to-

o There is 94 federal districts in the USA
 We want to lay venue in an appropriate district

Section A- The General Rules in Venue

Rules 1391 B1 & B2- Basic choices available to the plaintiff
 When the plaintiff sues in federal court, it’s to lay venue in a district under 1391 B1 & B2
 Those to subsections give the plaintiff 2 choices:

1) You may lay venue in a district where all defendants reside

 All defendants must reside in that district for it to work(if one is from
California and the other from Ohio you can’t use this) BUT

 If all defendant resides in the forum state- where the case was filed in federal court,
we must pick a forum where any defendant resides?
 Ex: If 1 defendant resides in southern district of California and the other
defendant in Northern district of California, there is no district where all
defendants reside BUT they reside in the forum state, so we can decide if
we want to sue them in either the southern or northern district of
California. We cannot sue them in other districts of California like the
Eastern district or central. It can only be in 1 that the defendants reside.

 What does reside mean?

o It’s different then Citizenship in which we use for Subject Matter jurisdiction.

o Individuals- Resides is defined by statute, as the residence in the district in which

in you are domicile. You only have one domicile

o Businesses (corporations, LLP, incorporated)- By statute a business resides in

all districts in which it is subject to personal jurisdiction for this case. They may
reside in several districts.

2) The plaintiff may lay venue in any district where a substantial part of the claim arose.
These are the plaintiff’s choices. (there might be more the 1 district such as if the contract arose
in 1 district and performed in another one and breach of contract occurred)

3) 1391 B3- You can lay venue wherever there’s personal jurisdiction over any defendant.
Why wouldn’t we always use that? Because it only applies where there is no district in anywhere
in American that doesn’t satisfy 1 & 2.

 These do not apply to cases moved from state court to federal court, they only apply
when the plaintiff is initially finally the claim in federal court.
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  In removal it can only be removed to a federal court the embraces the state court
where it was originally file.

Section B- the Transfer of Venue

 Must be in courts with the same Judicial system
 One federal court district to another federal court district
 Can transfer from different federal courts in different states
 CAN’T TRANSFER from a state court in Maine to a Federal Court in
Ohio because they are different judicial system

 The original federal district is the (transferor), the one in who we transfer the case to is
the transferee.
 It will only transfer if the transferor grants the motion to transfer to the transferee

2 Important Transfer Statutes in the Federal System: 1404 A & 1406 A: (similar)
o Under both of them the transferee must be a proper venue and have pj over the
defendant, they must be true without waiver of the defendant

 Hoffman V Blaski 1960-

 If we are in the federal courts in Maine and the defendant wants to transfer the case
 Order this case to transfer to the federal district in Hawaii
 The defendant says there’s no Pj or venue on him in Hawaii the courts could not do it
because you can only transfer cases to a court that has PJ and venue without waiver
over the defendant
 1404- Does says you may transfer to a any district at all even an improper venue if
all parties agree and the court thinks the transfer is a good idea. This rarely works
because the plaintiff usually doesn’t want to change venues to a place inconvenient
for him.

1404 A- (difference in both statutes)

 The transferor the original federal district is a proper venue
 That court may transfer to another district based on the convince of the
parties, witness and on the interest of justice. The transferee court makes
more sense it is the center of gravity that where all the witness is or events
take place, it would make more sense in that district
 The courts look at private and public factors such as which court wants to
be burden with this.

 Atlantic Marine Construction Co 2013 case.- Forum Selection Clause

 Forum selection clause is important on ruling in a 1404 A transfer because it was
a proper venue, it had PJ over the defendant.
 Courts said everything was satisfied so the transfer can be made

 A contract against 2 people where one builds something and the other
buys it, we might have a clause in the contract that says if we have a

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 dispute we need to dispute it in a particular place(that’s a forum
selection clause). Most courts will allow this unless its overreaching.

 In this case the clause stated to be litigated in eastern district of

Virginia and then the plaintiff sued in the western district of Texas and
then defendant tried to move under 1404A

 Defendant tried to transfer under 1404 A because it was

1406 A- Applies when the transferor is an improper venue

 The difference here is the 1406 A is when it’s an improper venue and 1404
was a proper venue
 This gives the transferor a choice, it may transfer in the interest of justice or it
may DISSMIS
 The plaintiff filed the suit in a improper venue and that is a cause for
dismissal

Section C- Forum for Non-Convenience

 This is when a court dismisses a case because there is another court that makes a lot
more sense because this other court is the center of gravity and is more convenient.
 We do not transfer we dismiss because transfer is impossible as the more convenient
court is in a different judicial system and you can’t transfer to a different judicial
system so you have to dismiss under forum non-convenience and let the plaintiff sue
in that other place
 Sometimes this happens when a more convenient court is in a different country which
you can’t transfer to another country. What would happen is you dismiss it and let
them go there and litigate.

25) Piper Aircraft v Reyno 1981- Plane crash in Scotland that killed all the passengers and the
pilot. They were all Scottish citizens and the plain was operated by a Scottish airline and the
owners were Scottish citizens.
 The issue was the plain was manufacture in Pennsylvania. There’s a case again the
manufacture in the court of Pennsylvania the court dismisses the case under the forum of
non-convenience so the plaintiff can sue in Scotland because this case does not belong in
Pennsylvania.
 The court has to look at both the private and public factors on ruling on a 1404 A
transfer, on ruling on a forum non-convenience motion.
 It is crucial that the other court foreign court be available and adequate. As we will not
leave the case if the plaintiff has no court room at all. It will only be satisfied if the court
is available and adequate
 Adequate does NOT mean you will get the same results it just means you will get a day
in court to be herd
 The fact that the foreign country may not give you a jury trial, or recovery for pain and
suffering, may not give punitive damages, it does not matter. Does not make it
inadequate as long as you only get a day in court it doesn’t matter what you recover.
Footnote 6 of the piper opinion :

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  The factors pertaining to the private interests of the litigants included the
"relative ease of access to sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; possibility of view of premises, if view would be appropriate to the
action; and all other practical problems that make trial of a case easy, expeditious
and inexpensive.

 The public factors bearing on the question included the administrative

difficulties flowing from court congestion; the "local interest in having localized
controversies decided at home"; the interest in having the trial of a diversity case
in a forum that is at home with the law that must govern the action; the avoidance
of unnecessary problems in conflict of laws, or in the application of foreign law;
and the unfairness of burdening citizens in an unrelated forum with jury duty.

 Courts often impose conditions, on a forum non-convenience dismissal.

 Example: Court says I will grant your forum for non-convenience but
in exchange for that you must waive certain defences in the
foreign country like waiving statute of limitations or
personal jurisdiction or other defences.

Video 3- The Erie Doctrine

 An Erie problem only comes up when we are in federal court under diversity of
citizenship Jurisdiction.
 There is an issue that the federal judge must decide.
 The Issue is if the Federal judge should apply state or Federal law or free to ignore
state law. Who pleads on which issues, what is the statute of limitation on a diversity
case

 The Black Letter Rule is very easy to state- it comes from the Erie case itself

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 o In diversity cases federal courts must apply state substantive law of the case.
Why?
o Erie told us that that’s true for 2 reasons
 It is compelled by The Rules of Decision Act section: 1652 of the judicial
code
 It is also compelled by the Constitution by the 10 th amendment- Powers that
are not given to the federal government in the constitution are retained by the
state and the Rules of Decision Act echo’s that by saying that in these cases
the federal court must apply state law on substantive matters

 Erie Railroad co V Tompkins 1938- Erie Doctrine was established

 Hanna V Plummer Prong 1965- This case showed us what we thought was 1 doctrine
(Erie) is really 2 doctrines. Hanna Doctrine and an Erie doctrine. Erie and Hanna Prong
to the analysis .
 There was a case in federal court in Massachusetts and the defendant was served
through substituted service of process which is satisfied under Rule 4 but under
Massachusetts law it was not valid.

 It is a diversity case in federal court so what does the judge do?

 If there is any federal rule, directive, provision of any kind on point that directly
conflicts with state law it wins as long as its valid and does modify substantive
law.

A)Hanna Prong of Analysis

Using Hanna first before Erie- Only use this if there is a Federal law

 Asks is there a Federal provision on point that directly conflicts with state?
o If yes then we apply the Federal law as long as it valid. Federal Law always wins
(constitution, federal statute)

 How do we know if a federal rule of civil procedure is valid? We look at:

o Rules enabling Act- s.2072 from the Judicial code:
o Its states federal rules are valid if they do not modify substantive rights
o Federal rules are almost always valid

 Shady Grove 2010 case- there should be a stricter test but the supreme court has never
invalided the Rule Enabling Act.

B) Erie Prong of Analysis

Use this if there is no federal provision on point
 The federal judge must apply state law on matters of substantive issues
 We don’t have to follow state law if it’s not substantive issues

Is it Substantive? 3 Erie Cases that had No Federal Provisions on Point:

1) Outcome Determinative:

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  Guaranty Trust v York 1945 case- Under state law the case that the plaintiff filed
would be barred under the statute of limitations. He waited too long before he sued and
under state law that case should have been dismissed .
 The case is brought into federal court because of diversity direction and the
federal judge wants to ignore the state law.
 There is no Federal Statute of limitations that’s why Erie is used instead of Hanna
 Held: The Federal court must use state law in the statute of limitations because
statute of limitation state law is substantive to Erie purposes
 It is substitutive outcome determinative, if we use the state law its barred and if
we ignore state law the case will proceed in the litigation stream that is a different
result, we should not have different results in the rules that determine that.

2) Balances of Interest

 29)Byrd V Blue Ridge Case –A particular state issue was supposed to be decided by
the judge no jury.
 This is a diversity case, does the federal judge have to follow state law?
 There is no other federal provision on point so it is an Erie problem.
 Is the substantive law? The outcome determination test wouldn’t work here
because maybe the judge and jury come to the same outcome.
 If a provision, rule or law is not clear if its substantive law then the federal court
should apply the state law even though it’s not clearly substantive, unless the
federal court has an interest to do it differently.
 Case was on the 7th Amendment to use a jury it outweighed the states interest.

3) The Twin Aims :

 Hanna V Plummer Prong 1965

 1) Avoid forum shopping – at the outset of the case(when its being filed) if
the federal judge ignored the state law, will it cause parties to flock to
federal court? If so it wouldn’t be fair because in order to get to federal
court citizens would need to have diversity and this can’t always happen.
 2) Avoid the inequitable administration of law

C) Various Hypotheticals

Shady Grove 2010 case- the courts upheld Rule 23- 5 judges agreed
1) We have a case filed by the plaintiff in federal court by diversity Jurisdiction.
 It is filed as a class action
 Federal Rule 23- would allow this to go forward as a class action
 But state law says in this kind of claim the claimants cannot proceed in a class
action, they must sue individually

Answer: Is there a federal provision on points? Yes

 Does it clash with state law? Yes, so you apply the Federal Rule if its valid.
 Is it Valid? Yes, under the Rules enabling act
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  Is it procedural? Yes- it’s how we aggregate claims
 The federal rule wins under a Hanna Problem

2) We are in state X and the legislature is worried about health care costs and wants to
reduce the costs and so it decides its going to have a rule about medical mal practice
litigation, so state law passes a law that says:” When a plaintiff sues for medical mal
practice before she goes to trial she must go to arbitration between a group of
doctors and lawyer and experts’ doctors. If she doesn’t like the final result she can
go to litigation and trial, but the jury will be told about the arbitration result ($5)
 Plaintiff don’t like this because it doesn’t show the injured parties
crying from pain and suffering who they won’t win as much money.
 You want to win 1 million dollars but arbitration said only $5
 But the idea is to reduce the amount of medical mal practice litigation
 A Citizen from a different state comes to state X gets hurt and goes to
the doctor when the state doctor committed a mal practice she sues in
state x and it is a diversity case.

The call: Must you apply that state arbitration rule? Or can you ignore that rule?
 Hanna: Is there a federal provision?
 No federal rule on this state law
 It is an Erie question:
 Is it outcome determinative?
 Maybe
 Balance the interest?
 The State has a big interest- trying to reduce healthcare costs
 The twin aims? If they ignore the state arbitration will it flock cases to go to
federal court?
 Yes, because she won’t have to put up with arbitration panel and
that promotes forum shop and it will result inequitable
administration of the law because X state plaintiff cannot get away
from the arbitration and they also can’t get to federal courts
because of diversity, that’s unfair.
Civil Procedure MBE- Multistate Approach Video

Civil Procedure Topic Tested:

o 27 Federal Civil Procedure Questions on the Multistate Exam

o 2/3 of the questions will come from the following areas:

 Jurisdiction and venue
 Pretrial procedures- such as pleadings, joinders and discovery
 Motions- pre-trial motions and motions for judgment of a matter of law,
post-trial motions

o 1/3 of the questions will come from:

 What laws federal courts should apply such as the Erie Doctrine
 Jury trials, verdicts and judgments, appellate review

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 
Not many multiple-choice questions mostly essay questions on this type

This is a new topic

Civil Procedure can be added into other topics

Many cases have been lost based on the wrong procedure so this topic is very
important
 Always think about why a certain Civil Procedure rules exist
Examples:
o Subject matter jurisdiction- rules exist were created to retrain federal courts
from hearing cases that should be dealt with by state courts

o Discovery- rules give structure to the proceedings so people know what to expect
and not take unfair advantage of the system

MBE Approach- Multiple Choice:

Step 1: Read the call of the question
o Determine the subject by reading the call, the call generally reveals the subjects
o Skim the answer choices to isolate the narrow issues being tested
o Use the call to direct your reading of the facts
 The call states: Which of the following arguments is most likely to achieve the
designer’s goal of dismissal of the 3 rd party’s complaint. Its obvious that it will
be a civil procedure question.

 Or if the calls say: Which standard of review applies to the argument

 Or says: Is the court likely to dismiss the action for improper service of process
 We know it’s a civil procedure question but now we need to like at
the hypo in the question to determine if the court can dismiss the
action. Such as facts when service was made, to who and to where

Step 2: Determine the type of Civil Procedure question

 There Can be 2 types of questions in Civil Procedure such as:

1) Jurisdiction Questions such as whether the plaintiff can bring the case in the right court &
 Certain facts that are Jurisdiction Questions:
 Look for facts that reveal whether the court has power over a party or piece of
property and whether court can hear the case
 Identify of parties: corporation or a private party, aliens
 State of residence- State A or State B
 Where the Accident Occurred
 Amount of money at issue- $75,000 or more
 Basis for the cause of action- Are they suing for damages because of a car
wreck (state law) or is it copy write infringement which is federal law

2) Procedural Questions- Procedural issue such as pleadings, motions, discovery process.

 Certain facts that are Procedural Questions:
 Look for the facts that surround immediate proceeding itself-

26
  Dates- solid time line of the proceeding
 Content of pleading, motion, discovery request

 Example if the call asks: whether the judge should strike the potential juror
for cause? (it is a procedure question).
o You need to find if the rule of procedure requires the judge to
strike the juror for cause because of the existence of some
fact

 Example if the call asks: Should the judge grant the motion?
o You skim the choices and it shows that all the answers have
to do with federal law such as:
 Federal subject matter jurisdiction
 Amount in controversy

Step 3: Answer the question before reading the answer choice?

 They create wrong facts to try to trick you by making them similar doing:
o Always use because in your answer to avoid distractors

When answering a question try to use it as in a real-life scenario such as your first day at
work, how will you guide your client?

1) Where to file?
 Personal Jurisdiction
 Subject Matter Jurisdiction
 Venue
o Once you know which court you’re in you need to know what
substance of law:

2) Applicable Substantive Law?

 Erie Doctrine
o Once you know whether to use state or federal law you need to:

3) How to file?
 Service of process
 Pleadings
o Once you have filed your case you need to learn the rules to wine your
case:

4) Obtaining Information?
 Discovery

In Step 2: Determine the type of Civil Procedure Question: You need to know
topics such as:

 Jurisdictional Questions:

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  Personal Jurisdiction:
o Whether the court have power over a particular defendant
o Limitations are state jurisdiction statute and the constitution
o Is there a long arm statute covering this conduct? If they committed an act
in another state then there usually is.
o Is it Constitutional?

 Subject Matter Jurisdiction- Power of the court

o Does the Federal court have power to hear the case? If it does: federal
question if it arose under the equal protection act or the copy write statute
o There is a complete diversity of citizenship among all parties and the
amount in controversy exceed $75,000.00 by the plaintiff’s good faith
allegation, is not retrospectively if its less than $75,000
o Aggregation
o Joint defendants

Supplemental Jurisdiction – Can add an additional claim has to have a common nucleus of
operative facts.
o Cannot override the complete diversity requirement

 Supplemental Jurisdiction Shorthand:

o A party may use supplemental jurisdiction to have him claim hear in
federal court if the claim meets the “Nucleus of operative fact test: Unless
the claim:
o 1) is asserted by a plaintiff,
o 2) In a diversity case,
o 3) And, is asserted against a citizen of the same state as the plaintiff
Test tip: There must be diversity or federal question jurisdiction before supplemental
jurisdiction applies.
Venue: What court as in geography?

o Is this the proper geographic district in which to bring an action?

1) The district where any defendant resides
2) Any district where substantial portion of the cause of action arose
3) Fallback- Any district where defendant is subject to personal jurisdiction
for the action
 Very unlikely unless, claim arose entirely outside of the
US

Test tip: When a defendant removes a case from state to federal court, venue is placed in the
federal court where the action is pending
 Embrace

Applicable Law- What kind of law is to be used federal or state law?

o Erie Doctrine
 What type of law should the federal court apply in a diversity case?

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  A federal court in a diversity case will apply federal procedure
rules, but that substantive law of the state in which it sits

Procedural Question: In chronological order(timeline), where are you in the case?

 Pleadings-

o Complaint- the grounds of federal jurisdiction, short complain of the relief and
judgement for relief

o Service of process- Copy of the complaint and a summons to appear in court

 Who can process-18 or over and not a party to the action we can
bring it to his home or leave it with some an authorised agent
 Does he waive process
 Motions-
o He can file a motion to dismiss based on a proper venue or sm, pj
o Motion to strike
o Motion for indefinite statement
o If he files one of these Pre-answer Motion he has 14 days after denial of the
motion to file his answer
o Counterclaim-

 Federal rule under civil procedure Rule 11 - certify to the court to the best
of our knowledge (not pulling the courts chain)
 Joinder- Compulsory if court could not provide complete relief without that
party or if the absent party could not protect an interest in the proceedings
 Class action- cross claim
 Impleader- Used when there is an allegation a third party will owe the
defendant if the plaintiff win. (indemnity or contribution)
Discovery- Any evidence that is unprivileged
 Order during the fact gather of the case
 Required to make disclosures automatically such as:

o Initial disclosures, - expert testimony, pre-trial disclosures that are reasonable

available not privileged

o Initial disclosures- key information on key individuals who may have evidence
unless it’s for impeachment purposes, copies of documents, electronic info,
tangible things in which the party may use as a defence, copy of damages, copy of
insurance agreements. To support the claim

o Expert Disclosure- the identity of witness that will be used at trial

o Pretrial Disclosures- witness that she will call at trial, witness that she would call
if something arises, witness whose testimony will be presented by means of a
deposition and a transcript of the deposition and exhibits that might be used

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 o Discovery Tools: Used to discover any information relevant to a claim or defense
 Information discovered need only to be reasonably calculated to lead to
admissible evidence

Trial- Pre-Trial/Post-Trial

 Motion for summary Judgment- When they tell the judge that there is no
genuine dispute of material fact. Is made during discovery or 30 days after

 Motion for judgment as a matter of law- no jury can have a legal basis for
deciding this case

 Renewed motion for Judgement as a matter of law- 28 days after the judgment,
you must have made it before the trial

 Motion for a new trial- must also be made 28 days after judgement because the
verdict is against the evidence or some error during the trial.

 Appellant Review

Module 2:
Notice, Service of Process and the Opportunity to be Heard
 Due process requires that the court have personal jurisdiction over the defendant
 Due process also requires that the defendant be given notice of the law suit and an
opportunity to be herd. (This is constitutionally based)
 This Model will discuss section A- Service of Process, B- Constitutional Standard for
Notice, C- Opportunity to be Herd

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 A- Service of Process

 This is governed in Federal Court by Federal Rule of Civil Procedure 4

 Service of Process is a way we give notice to a defendant

Federal Rule of Civil Procedure 4- There are 4 important things in this rule.

 1) Process consists of a summons and a copy of the complaint. When we say service of
process it must contain these 2 documents. The summons is the official court notice of
suit, it shows the government’s power over the defendant and signed by the clerk of the
court. The complaint tells the defendant what the claims are against her.

 2) Service can be made by any non-party who is at least age 18 (Rule.4(c)(2)). This party
does not need to be appointed by the court.

 3) How do we serve process on an individual? (Rule.4(e)).

 In (Rule.4(e)(2)) it gives you 3 choices on how to serve process on the defendant.

They are:
1. Personal Service- Walk up to them and hand it to them ANYWHERE.

2. Substituted Service- This can only be done at the defendants dwelling

or usual abode. Also must serve someone of suitable age and discretion
who resides there.(not a baby sitter, butler might work)

3. Serve the defendants Agent-Might have appointed someone by

contract or operation of law to serve process. Non-resident Motorist Act
by driving into the forum, we are appointing someone as an agent to
serve process (usually under registrar of motor vehicles).

 4a) In (Rule.4(e)(1)), it allows you to use any methods of service that are permitted under
state law. Either the state where this federal court sits or the state where the service is
affected. We Can use certified mail which is not used in federal court but because of
Rule.4(e)(1) we can use any method that’s allowed by the state court in the state where
the federal court sits or where the process is served.

 4b) How do we serve process on a business (any business such as a partnership, limited
liability company)? According to (Rule 4 (h)(1) we can serve an officer or managing or
general agent. An officer can be a corporate president/secretary. Managing/general agent,
the title this person holds is not that important, what is important is the job responsibility.
That you serve process to someone with sufficient job responsibilities to transfer
important papers. We can also use Rule.4(e)(1)(above) it allows you to use any methods
of service that are permitted under state law. Either the state where this federal court sits
or the state where the service is affected. We Can use certified mail which is not used in
federal court but because of Rule4(e)(1) we can use any method that’s allowed by the
state court in the state where the federal court sits or where the process is served.

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  5) Waiver of Service Rule4(d). (not service by mail) It is Waiver by mail. The plaintiff
mails to the defendant process and 2 copies of a waiver form. If defendant signs the
waiver form and mails it back plaintiff within 30 days, they have waived formal service
of process and no need to go through a formal services of process. By doing this it is not
only cheaper but the defendant does not waive any defences such as lack of personal
jurisdiction, improper venue. By doing this the defendant has longer to reply with the
defendants defences response. Instead of having to respond in 21 days the defendant will
have 60 days from the day the plaintiff mailed it. If the defendant does not waive the
form and does not have good cause, the defendant must pay the cost of service(process
server). Now the plaintiff must hire a process server that the defendant will have to pay.

 6) Geographic Limitation- Rule4(k)(1)(a) says service of process can be served

throughout the state in which the federal court sits. We can serve process outside the
forum if a state court could do so as well. Federal courts have limit their exercise of PJ to
that of the state. This is why we look at the states long arm statue.

B- Constitutional Standard for Notice

 Here we need to make sure that the notice comports with due process with the
constitutional requirements

 Mullane V. Central Hanover Bank & Trust Co. 1950- Due process requires: “ Notice
must be “reasonably calculated under all the circumstances, to apprise the parties of the
proceeding and give them an opportunity to object”. Publication notice is okay but should
be a last resort, if you cant find the person.

 Jones V Flowers 2006- If it becomes clear to the plaintiff that it was not received, the
plaintiff must try some other means of giving notice. When a state is attempting to serve
a citizen with process, it must take reasonable steps to serve the notice if service by mail
is ineffective. (Letters were sent back that they don’t live there anymore)

C- Opportunity to be Herd

 This often comes up in commercial transactions such as in a installment contract. Buyer

buys a product and pays it monthly and if default seller may be able to obtain the
property. Cases where it shows due process safeguards to the buyer in this position to
guarantee the buyer to be herd against this property. It is not clear what is constitutionally
required.
 Snideck
 Mitchel
 Fuentes
 North Georgia finishing
 Connecticut V Doehr- unconstitutional seizure of the defendants property as it
didn’t have all the safeguards needed

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  What is constitutionally required for the protection of the buyer(defendant) to allow the
possibility of pre judgement seizure of that property:

1. The plaintiff(seller) must give an affidavit of his claim (sworn statement and go
under oath if you’re the plaintiff trying to repossess this property)

2. The affidavit must allege specific facts showing that the plaintiff is entitled to that
property

3. Must be an order from a judge

4. The plaintiff(seller) must post a bond to cover the defendants cost if the defendant
wins

5. The defendant(buyer) gets a hearing on the merits

6. The defendant may get that property back pending litigation if the defendant post
a bond

 Some of these safeguards have to be there to provide a meaningful opportunity to

be herd before the defendants property to be seized. If it is satisfied then it will be
constitutional.

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