Civil Procedure Outline

Chapter 1: An Introduction to American Courts

Chapter 2: A Description of the Litigation Process and Sources of Procedural Law

Chapter 3: Diversity Jurisdiction in the Federal Courts I. Introduction: II. State Citizenship of Individuals: The Domicile Test 1. Common Law concept of Domicile: a. Residence with the intent to remain “indefinitely.” b. Has been used for several purposes. For example: to determine the power to exercise personal jurisdiction over a person, to grant a divorce, to impose a tax or to determine the persons entitled to inherit property. 2. Losing and gaining a domicile: a person does not lose her old domicile until she acquires a new one, that is, until she hoes to another state wit the intent to reside indefinitely in the new state. (Examples on pg 45-46). 3. Meaning of “indefinite intent: often, courts state that it is enough that the party “intends to make the new state his home and that he has no present intention of going elsewhere [to live].” 4. Alternative formulation of the domicile test: to establish a domicile of choice a person generally must be physically present at the location and intend to make that place his home “for the time at least.” 5. The date for determining diversity: parties must be diverse on the day the complaint is filed, even if the parties were not diverse at the time of the events giving rise to the claim. c. This promotes efficiency: 6. Evidence of domicile contrasted with the test for domicile: examples are a drivers license, health insurance, her apartment her religious affiliations and other facts (Gordon v. Steele); this is only evidence, the true test is the persons intent. 7. If diversity exists, which federal district court has jurisdiction: 28 U.S.C §1332(a), provided that “the federal district courts,” shall have jurisdiction over cases between citizens of different states. d. The particular federal district the P chooses matters in determining whether the court has personal jurisdiction over the D or is a proper venue, the but is irrelevant in determining whether the court has matter jurisdiction over the cases. e. The court has diversity as long as the P and D are citizens of different states, (and the amount-in-controversy requirement is met.) III. The Complete Diversity Rule 8. The diversity statute has been interpreted to require complete diversity between all P’s and all D’s. 9. The Alienage jurisdiction: the district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interests and costs, and in between f. Citizens of a state and citizens of a foreign state g. Citizens of different states and in which citizen citizens or subjects of a foreign state are additional parties i. Statutory exception: to this rule for foreign citizens “admitted to the US for permanent residence” under the immigration laws. They are treated as citizens of the state of domicile. 10. US citizens who are not state citizens: living in a state, but planning to return to France or other country. 11. A court cannot hear a case, if it lack subject matter jurisdiction. 12. The domestic relation exception to diversity jurisdiction: the Supreme Court has long held that diversity statutes do not authorize jurisdiction over domestic relation cases. IV. State Citizenship of Corporation and Other Entities 13. A corporation is a citizen of every state or foreign state in which it is incorporated h. Can be incorporated in multiple states 14. It is also a citizen of the place in which it has its principal place of business. (Nerve center test- Supreme Court resolved the conflict and state that is determined by look at the headquarters are- “direction, control and coordination.” i. Is determined by, where the large decisions are typically made. 15. Lawyer representing corporations have generally favored litigating in the federal courts, especially in cases between local citizens and an out-of-state corporation. 16. Corporation: an intangible legal entity created under state incorporation laws. Must file articles of incorporation and must be filed in accordance with the laws of the state you want it to be filed with. j. Because the corp. is a separate legal “person,” shareholders are generally protected from personal liability beyond the amount they have invested in the company. 17. Supreme court held that corporations are citizens of a state k. Initially, corporations were citizens of the states in which they were incorporated. 18. Marshall rule: treating people of a corporation as belonging to the state in which the corporation was incorporated. 19. 28-§ 1332(c) (1): a corporation shall be deemed a citizen of any state by which it has been incorporated and of the state where it had its principal place of business. l. Corporation can have dual citizenship (see example on pg. 58- Corporation incorporated in Delaware and the principal operation is in Nevada); courts have interpreted that the corporation can only have one principal place of business for diversity purposes. m. Makes a corporation a citizen of both its state of incorporation and the state of its principal place of business. n. Determining the principal place of business: courts applied he ii. “Nerve center” test- under which the legal headquarters was deemed the corporation’s principal place of business. iii. Daily operations test: where most of the daily operations occur

Statutory requirement: 1.

Hertz Corp. v. Friend
Rule: a corporation shall be deemed to be a citizen of any state by which it has been incorporated and of the state where it has its principal place of business.

Nerve center: center of direction, control and coordination, its nerve center.

V. The Amount in Controversy Requirement 20. The P had to make the amount in good faith, Unless it appears to a legal certainty that it can be that amount o. Legal certainty is difficult to prove 21. P cant recover if (usually two circumstances): p. If there is a statutory reason, the law may not allow them to get damages that exceed $75,000. iv. Negligence- can’t get punitive damages, but can q. The facts may be so lacking that it may appear that the P can’t prove it. 22. Attorney fees are not paid to prevailing party. 23. If the P wins but doesn’t get a judgment for $75k, then the court may deny P costs or may impose costs on the P. r. This is a penalty to weed out cases that are not really worth the $75k; and those cases that are permissive, but is really worth less. 24. Rule for determining requirement s. What is P asking for t. Are they asking in good faith u. Unless it can be proved to a legal certainty that the P can’t recover then it cant apply. 25. In 1789 the minimum requirement was at $500 26. $75,000 in 1996 27. St Paul Mercury test- gives the P the benefit of the doubt, it asks whether or not the P’s injuries will amount to more than $75,000. 28. Goal is to keep federal courts from frittering away their resources on petty cases. 29. Federal Rules of Civil Procedure requires that the factual allegations in a complaint have “evidentiary support.” VI. Aggregating Claims to Meet the Amount Requirement 30. Refers to adding amounts in controversy to satisfy 1332. 31. If multiple causes of action are alternative, you must look at the actual loss that was suffered by the P. (check on this) 32. Separate damages associated with different causes of action. v. One COA- 50K and the other 30k 33. Even if factually unrelated, the P can still use them together to meet the amount requirement. 34. A P may have causes of actions that are separate from one another 35. Multiple P’s cannot aggregate. (We are not studying the exception) 36. P suing multiple D’s is also not allowed to aggregate. w. However, … 37. A P may aggregate-add together- any separate claims she has against a single defendant to meet the amount-in-controversy requirement, even if the claims are unrelated. x. But co-plaintiffs can’t add their claims together to reach the amount requirement, or add different amounts demanded from different defendants y. A P cannot add claims against different D’s together to meet the amount requirement z. Co-Plaintiffs cant add their suits together to reach the amount requirement when they a re suing the same D. 38. Exception: 28 U.S.C. 1367- the second P may tag along, since the 1st P’s claim meets the amount requirement. 39. Common undivided interests: in some narrow circumstances, Ps may sue on a joint interest or a claim that is in some sense “indivisible.” {. In most cases involving the common undivided involving multiple P’s, each asserts a separate right to recover her own damages, even if their claim arises out of the same underlying 40. Determining the amount of controversy where either or both defendants might be liable: 41. The effect of a counterclaim in assessing the amount requirement: a counterclaim cannot be aggregated with the P’s claim to meet the amount requirement. VII. The Constitutional Scope of Diversity Jurisdiction Compared to the Statutory Grant of Diversity 42. If a case isn’t on the Article III list, that the federal courts do not have subject matter jurisdiction over it. |. However, it doesn’t follow that, if a case is within a category of the Article subject jurisdiction, a federal court will always have the authority to hear it. 43. Two questions to ask as to whether the federal court can hear the case }. Is the case within the constitutional grant of the federal subject matter in Article III, Section 2? ~. And if it is, has congress passed a statute actually conveying jurisdiction over the case to the federal district court. 44. Article III authorizes federal courts to hear all diversity cases, without regard to the amount in controversy. 45. Minimal Diversity: congress has from time to time authorized federal courts to hear cases based on minimal diversity. VIII. Diversity Jurisdiction: Summary of Basic Principles

CHAPTER 4: FEDERAL QUESTION JURISDICTION I. Introduction 1. The lower federal court does not automatically exercise the entire jurisdiction described in Article III, Section 2. II. The Constitutional Scope of Federal Question Jurisdiction 2. So long as there is a federal ingredient in the action- whether it is introduced by the P’s claims or by a defense asserted in the D’s answer- Osborn holds that Article III, Section 2 grants federal question jurisdiction over the case a. “Original Cause” involves a question of federal law, the case aroused under the federal law- any case in which and issue of federal law is asserted by one of the original parties thus satisfies the constitutional definition of federal question jurisdiction. III. The Statutory Scope of Federal Question Jurisdiction: The Well-Pleaded Complaint Rule 3. 28 U.S.C. § 1331- congress conveyed the federal question jurisdiction to the federal district courts. 4. Article 3, Section 2- authorizes jurisdiction over “cases arising under” federal law. b. However, the courts have interpreted this statutory grant of federal question jurisdiction much more narrowly than the constitutional grant. 5. Involve federal law 6. Cases that arise under federal law: 7. Louisville v Mottley: D were given free transportation for neg. of P c. Cant be brought up in federal court d. State court can hear e. Federal law only enters into the case as a defense f. Mottley Rule- in order for a case to “arise under” constitution law or treaties and thereby satisfy 1331, an issue must appear on the face of the well pleaded complaint (a complaint that includes what’s to the prima facie case, not defenses) 8. The basis has to be found with in the initial claim- P claim must reveal the issue that the claim arises under the 9. Well-pleaded complaint rule- the case arises under federal law, as the phrase is used in § 1331, if the federal issue appears on the face of the well-pleaded complaints, that is

IV. APPLYING MOTTLEY: JUSTICE HOLME’S CREATION TEST 10. State court jurisdiction in federal question cases- 11. Federal question jurisdiction based on counterclaims 12. Assessing federal jurisdiction in declaratory judgment actions: g. Declaratory judgment: allows a party, before an alleged violation of rights has actually taken place, to bring suit and ask the court to “declare” the rights of the parties. a. Allows a party to know, prior to taking an action that may violate the other party’s rights, whether it will do so b. Supreme court held: where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is a federal question jurisdiction in the District court. 13. Congressional control over federal question jurisdiction: congress could authorize jurisdiction over diversity cases but not cases against aliens.

V. BEYOND THE HOLME’S TEST: STATE LAW CLAIMS INVOLVING SUBSTANTIAL QUESTIONS OF FEDERAL LAW 14. The US Supreme Court has held that a case that asserts a state law claim may satisfy section 1331 if, in order to decide the state law claim, the court will have to resolve a substantial issue of federal law. h. Congress has given the lower federal courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint establishes either that the federal law creates the cause of action or that the P’s right to relief necessarily depends on resolution of a substantial. 15. Some background: VI. ARTICLE III AND SUPREME COURT JURISDICITON MOTTLEY, ROUND II

CHAPTER 5 REMOVAL OF CASES FROM STATE TO FEDERAL COURT I. Introduction: concurrent jurisdiction of the state and federal court. 1. Removal is not a type of jurisdiction, it is a procedural devise, by which a case that was originally filed in state court, but is removed to federal court. a. Removed from state to federal court, i. However if improper removal- it will be remanded back to state court b. When can a case be removed § 1441(a): ii. Must show diversity or subject matter jurisdiction. iii. Can only be removed to federal court if it could have only been brought to fed court originally. iv. A case can only be removed to federal court if the fed ct has subject matter jurisdiction over the case. i. Motely case could not have been removed to federal ct.: because there would have been no subject matter jurisdiction 1131 or 1332 were not satisfied. ii. Every case that could have been brought in fed ct originally can be removed to fed ct: False, because of § 1442(b) the citizen is a citizen of the state in which the issue is brought. (Home-state defendant rule: (rationally for diversity of citizenship- belief was that state judges will be more partial to citizens of their own state.)) iii. Federal subject matter, there is federal subject matter in any federal jurisdiction. iv. Subject matter jurisdiction II. Procedure for Removal and Remand 2. The “Who, When, Where, and How” of Removal c. Who may remove? v. If there are multiple defendants, then all defendants must agree on removal to invoke it. vi. The case can only be removed within the same geographic are. 3. When must the case be removed? d. A defendant sued in state court must remove to federal court within 30 days of receiving the initial pleading or being served with the process in the action. vii. If the defendant does not remove within that period, he waves his right to remove. 4. Removal later in the case: Case can become removable by addition of a federal claim or by dropping a non-diverse party. e. Even if a case isn’t removed within 30 days after it is filed, it can sometimes be removed later. viii. Ex: Carla, a Florida plaintiff, files suit against Marin, a Florida defendant, for assault. Later Carla’s counsel learns that Marin, when he committed the assault, was arresting Carla in the course of his duties as a police officer. f. At the time that Carla’s counsel realizes that Carla has a federal civil rights claim against Marin for a violation of her 4th amendment rights and can amend her complaint to add the federal claim. g. Here, Marin couldn’t have removed the case as originally filed because both are Florida residents, however once Carla adds the federal claim it becomes removable. 5. Where should the case be removed? h. A defendant can remove to a federal district court but cannot choose which federal court it can remove to. i. She must remove it to “the district court of the United States for the district and division embracing the place where such action is pending.” ix. Can be far, but must be within the district 6. The Process of Removal j. To remove a case to federal court, D files a notice of removal in the federal curt and notifies P and the state court that she has done son. 7. Notice should specify: k. Notice of removal- must be filed in the federal district ct.- x. Will have a short and plain stmt for the grounds of removal xi. The D also has to give notice to the adverse parties of the removal xii. The notice will also get filed in the state court 1446(d) v. As soon as notice is given to state court, it loses power over the case (unless and until the case is remanded.) l. Fed court will decide if the removal was proper. m. The D has control over the decision maker. n. Ground on which case is removable (Diversity, federal statute etc.) o. A copy of the state court complaint and summons. p. Filing a notice of removal automatically transfers the case to federal court (even if the federal court does not have jurisdiction). q. When the notice of removal is filed and the state is notified, the state court loses all power to proceed with the case. (28 U.S.C. § 1446(d)) 8. Motions to Remand r. P challenges removal by filing a motion to remand xiii. Motion to remand- a motion that asks the court to send the case back to the state court. Based on: vi. The court lacking subject matter jurisdiction over the case; vii. Some other reason, but non-subject matter jurisdiction (1441(b), removal was untimely, all D’s did not agree process wasn’t correct, etc.) 1. For the most part, the party’s have to make the argument viii. Why distinguish: 2. 30 day deadline- the P has 30 days to file a motion to remand for anything that’s based on anything other than lack of subj. matter jurisdiction s. The complaint may not show that the case is removable: xiv. A state law cause of action, assuming the parties are not of diverse citizenship, P then amends complaint to add a 2nd cause of action that shows a federal question xv. 30 after the D receives amended compliant t. It may not be clear what the amount in controversy is: xvi. It may not come clear until later on in the case u. If the compliant doesn’t show that it is removable. v. D removes a case by filing the notice of removal. w. P takes no part in removal and may not even know until arrival of notice. x. P may move to remand for lack of subject matter jurisdiction “at any time before final judgment” if they believe that the case was not removable or procedure to remove was not proper. (28 U.S.C. § 1447 (c)). y. The 30-day period in § 1447 (c) is different from that in § 1446 (b). z. Under §1446 (b), D must remove the case within 30 days of receiving the initial pleading in the case. {. Under 28 U.S.C. §1447 (c) a party moving to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a) (U.S.C. § 1447(c)) if not then removal is waived. |. Logic for 30-day period under §1447 (c) is that it is important to settle quickly which court is going to hear the case and to avoid manipulation by the parties. }. Only way to get out of it, is if the D acted in bad faith. ~. How do you avoid being removed to federal court xvii. Limit recovery amount xviii. Add another D from your state xix. File it in D’s state. xx. Don’t add a federal claim. . Once case has been properly removed, there is nothing that the P can do to . P 1447(e)

CHAPTER 6: THE EVOLUTION OF PERSONAL JURISDICTION I. An introduction to personal jurisdiction: 1. Example: P (Massachusetts) and D (Alaska) get into a car accident in Alaska; P wants to sue in Mass., however, although Mass. Ct. has subj matter jurisdiction, it doesn’t have personal jurisdiction over D; if the case were taken to Mass. it would violate D’s 14th amendment rights. II. Early History: Pennoyer v. Neff 2. Terminology: a. In personam jurisdiction: occurs if the court has authority to require the D to personally appear and defend the case in the state where the suit was brought. i. a judgment against a D can be satisfied from any assets that the D owns. ii. P’s prefer in personam jurisdiction over a D because an in personam judgment may be satisfied out of any of the D’s assets. i. Full faith and credit clause: the constitution requires state courts to recognize in personam judgments of another state’s court, the P can take and in personam judgment to another state where the D has assets and enforce the judgment there. b. Quasi- in rem jurisdiction: involves a courts assertion of control over a D’s specific property, such as real estate or a bank account, that is located within the state where the D is sued. iii. does not give the court jurisdiction over the D personally, but it did subject the D’s attached property to the power of the court. iv. Unlike in personam, in rem did not subject the D personally to orders from the court or entitle the P to collect judgment from other property that he D owned. v. Full faith and credit clause not applicable: in rem only authorizes the sale of the particular property that the court has attached, and the judgment cannot be enforced in other states under the Full Faith and Credit Clause. vi. A P can only retain full relief if the property is worth more than the judgment. c. States as independent sovereigns: no state can exercise direct jurisdiction and authority over persons or property without [outside of] its territory. The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists, as an elementary principle, that the laws of one State have no operation outside of its territory, except so far as is allowed by comity; and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. d. Notes 6-8 (pg. 156-158): vii. Scenario: P is suing D for unpaid med bills, D moves from Oregon to CA. What are P’s options? ii. P could have sued D in Oregon and attached any prop that D owed (assuming the attachment took place at the appropriate time, i.e. D was still a citizen or Oregon), or iii. P could sue D in CA because the CA court would have in personam jurisdiction over D. Also, because of the full faith and credit clause P could have taken the in personam judgment into any other states and enforced the judgment 1. However, it is very expensive to sue in another state. viii. an intentional exception-status determination: courts have jurisdiction to grant status changes, such as divorces, even though one spouse cannot be found or served with process. iv. Marital status: because marital status is viewed as a res- a type of property- a court can typically dissolve the marriage if either of the spouses appears in the court and is domiciled in the jurisdiction. 2. Exception: does not apply to financial support (alimony). ix. Preclude to a problem- consent: individuals could consent to a courts exercise of jurisdiction over them, even if they would otherwise not be subject to jurisdiction. III. SOCIAL CHANGE AND DOCTRINAL RIGIDITY (pg. 158-175) 3. before Pennoyer, businesses were generally subject to in personam jurisdiction where they were formed. 4. Dealing with interstate businesses: e. Supreme court def. of corporate presence: we are satisfied that the presence of a corporation within a state necessary to the to the service of process is shown when it appears that the corporation is there carrying on business in such sense as to manifest its presence within the state, although the business transacted may be entirely interstate in it character. 5. Dealing with a mobile public 6. Other doctrinal modifications: f. Domicile: the legal term refers to the state where someone is living with the intent to remain indefinitely as an alternative basis for a court to exercise personal jurisdiction over an individual. x. court held that domicile in the state alone is sufficient to bring an absent D within the reach of the state’s jurisdiction for purposes of personal judgment. g. After Milliken and Hess: an individual D was subject to personal jurisdiction in a state, even if not served within the state’s borders, if the D was domiciled there or had implicitly consented to personal jurisdiction in the forum.

CHAPTER 7 SPECIFIC IN PERSONAM JURISDICTION A. McGee v Int’l: insurance company had only one contract in CA, US Supreme Court stated that the one contact that it had in CA was the one in which the D had, even though there was only one contract 1. Breach of k; P wins (CA) D did not show up in this lawsuit 2. Full faith and credit clause: if the ct in #1 was valid, the judgment stands. a. P goes to Texas to get the judgment enforced b. D responds with collateral attack- D states that the previous lawsuit is not valid. 3. Supreme Court held that California did have personal jurisdiction. B. Notes and questions: 4. Contracts as an essential C. Relationship between contacts and reasonableness: to establish specific jurisdiction, a P’s claim had to arise out of the D’s contacts with the forum. 5. Worldwide Volkswagen v. Woodson: P suing Audi, VW of America and Seaway. Seaway (dealership) and Worldwide are challenging personal jurisdiction. D’s had no ties, contacts or relations to Oklahoma. c. Issue: is the due process clause satisfied by the personal jurisdiction. no one is arguing that the Oklahoma long are statute does apply. Whether or not the long arm statute applies, the US courts has no authority of the authority of Oklahoma; because it is a state law and the US Supreme Court cant tell the stat that they read their own law incorrectly. What can the USSC say? – that the due process was incorrect or tells the states that their law was unconstitutional. d. Foreseeable e. Unilateral activity f. You should have realized that unilateral activity just 6. Burger king v. Rudzewicz: lawsuit to sue one of burger kings franchisees. It was brought in federal court in FL. D has a contract with a company that is based in Fl. g. Issue: can the FL court exercise jurisdiction over a Mi. resident. Is the exercise of PJ consistent with the due process clause or not. 7. Arising out of test: h. But-for test: but for P’s contacts, would the COA have ever existed i. Evidence test (pg. 226): a claim arises out of the D’s in-state contacts only if “the D’s forum contact provides evidence of one or more elements of the underlying claim. (connect the cause of action to the contact).

CHAPTER 8: OTHER CONSTITUTIONAL BASES FOR PERSONAL JURISDICTION

I. General In personam Jurisdiction: Helocopteros Nacionals de Colombia, S.A. v Hall A. Distinguishing specific and general jurisdiction: a. Specific jurisdiction: exists over claims that arise out of the D’s deliberate in-state contacts so long as the exercise of jurisdiction would be “consistent with traditional notions of fair play and substantial justice.” i. Notably: D only need to have “minimum contacts with the forum state in order to satisfy this standard. b. General jurisdiction: requires more than minimum in-state contacts. General, jurisdiction only if the D has “continuous and systematic” contact with the forum. ii. If D has these more extensice in-state contacts, a court has the authority to hear any claim that the P may have against that D, even claims that arose out of the D’s contacts in a different state.

B. Why is general Juridiction fair? c. Personal jurisdiction exists to protect the constitutional right to due process, and the right is violated when the Ds are forced to defend themselves in an unfair forum. C. Helicopteros Nacionales de Colombia, S.A. v Hall d. Notes and questions: II. Consent and waiver D. Consent: e. Several ways for a party to consent to personal jurisdiction: iii. a D can affirmatively decide not to raise the issue. (courts typically do not address personal jurisdiction sua sponte (on their own), so if a D wants to litigate in a court that lacks personal jurisdiction, the D can simply appear in court and not raise the issue iv. parties can consent to personal jurisdiction through E. waiver: f. similar to consent, except: v. that waiver typically results from a party’s failure to raise an issue within a specified time or in proper manner vi. federal rules and civil procedure describes the procedures that a D must follow to avoid waiving personal jurisdiction defense g. court can also deem a party to have waived personal jurisdiction if the party fails to comply with court orders h.

synthesizing international shoe & Pennoyer * Pennoyer * Due Process Clause: satisfied if and only if one of the following 4 conditions satisfied: * D is a resident of forum state * Sufficient for DPC * D consents to PJ in forum state * Sufficient for DPC * D is “tagged” within forum state * No longer sufficient any more (just owning property itself is not sufficient to satisfy the DPC) * However, you can still say that it still shows minimum contacts * Must then do the int’l shoe case * Normally for this class it is good. * D’s property within forum state is attached * International shoe removes the only if language is cont * Even if those conditions do not exist, DPC satisfied if: * D has minimum contacts with the forum * AND exercise of PJ is not unfair. * DPC- * Domicile is still a valid basis to satisfy the due process clause, you do not need to go onto int’l shoe if the D is domiciled in the forum state.

Minimum contacts prong
Int’l shoe * Quality- Purposeful availment/direction * Quantity- * Whether continuous n systematic (general jurisdiction) * If yes, then subject to PJ regardless of whether or not the relate to those contacts * If not, then COA doesn’t arise out of the contacts or relate to the contacts. (specific jurisdiction)
AND
Fair play and substantial justice * 5 factors: * P’s interest- convenience to P to be in forum state * Prejudice in case presentation * Forum state interest- * Efficiency in adjudicate- not always about speed, its about trying to maximize the use of judicial resources * Some facts that may matter: expert witnesses, location of witnesses and evidence * Burden on D * Shared interest in the several states in advancing substantive social policies.

In order to exercise PJ you must satisfy: * long arm statute * due process clause

CHAPTER 9: LONG ARM STATUTE

Both the long arm statute and the due process clause must be satisfied.

I. Long Arm Statutes A. INTRODUCTION: A court cannot exercise personal jurisdiction in every instance where it would be constitutional to do so. a. The due process clause is only a limit on a court’s power, not an authorization to exercise the power. i. Court’s authority to exercise personal jurisdiction is usually granted in Long arm statutes. 1. These statutes determine how much personal jurisdiction its courts should have (How far the “long arm” of the courts should reach) i. This type of authority is limited by the constitution, but without this statutory authorization (long arm statute authorization) a court typically cannot exercise personal jurisdiction.

B. Distinguishing Constitutional and Statutory Limitations on Personal Jurisdiction b. Personal jurisdiction MUST be authorized by a statute or rule, but jurisdiction MUST NOT EXCEED the constitutional limits on the due process clause. c. A few states have adopted long arm provisions that confer on courts as much authority to exercise personal jurisdiction as the Constitution allows. ii. EXAMPLE: California’s long arm statute provides that “ a court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this sate or of the United States. d. For a court to exercise personal jurisdiction two conditions usually need to be satisfied: iii. Personal jurisdiction must be authorized by a long arm provision OR under a catch-all provision like California’s 2. Question to ask: Whether the facts fit within a provision of the state’s long arm statute iv. Personal jurisdiction must be constitutionally permissible 3. Question to ask: whether the exercise of personal jurisdiction is constitutional.

C. Common law personal jurisdiction? e. Normally, a court can exercise personal jurisdiction only if there is an applicable statute or rule that authorizes it. f. However, its different when personal jurisdiction is “Tag” (Transient presence). v. In the case Burnham, Mr. Burnham had lived in NJ. He was served with divorce papers while on a trip to California and to visit his children. Physical presence within the forum state is sufficient for an exercise of personal jurisdiction over a party, provided the party’s presence is voluntary 4. Here, There was no need to predicate (personal) jurisdiction on the long-arm statute because the defendant was served personally within the state. vi. The argument for such common law authority is that “Tag” jurisdiction has existed for centuries, even though statutes never provided for it. 5. In contrast, specific jurisdiction grew out of the Supreme Court’s decision in International shoe and its not part of a court’s common law authority.
3. Therefore, a statute or rule must explicitly describe the bases for specific jurisdiction.

D. 5. Overextending a long arm statute: LOOK AT DIAGRAM 9-2 pg. 305 E. 6. Shortening a long arm: LOOK AT DIAGRAM 9-3 pg. 306 F. Taking it to the limit: Note 5 and 6 show two possibilities of the long arm statutes. The third possibility is: a statute that covers personal jurisdiction to the full extend that the constitution allows, no more and no less. g. In these states, the personal jurisdiction analysis collapses into a single question: Would the exercise of personal jurisdiction be constitutional?

II. Long Arm Provisions in Federal Courts G. Distinguish the 14th amendment and 15th amendments Due process Clauses: h. Courts usually look to the 14th amendment Due process clause to determine whether a particular forum should be allowed to exercise personal jurisdiction over a defendant. vii. Applies to the states, not the federal government. i. A Federal Court’s power is usually limited by the 5th amendment Due Process Clause. viii. The clause is very similar to the 14th amendment one but it has been interpreted to permit the federal court to exert much more personal jurisdiction authority than the 14th amendment permits the state courts to execute. ix. The reason for the distinction between federal and state court authority is that a court’s power to exercise personal jurisdiction turns to a significant degree on the territory controlled by the sovereign for which the court acts. 6. For the state courts this means that a D must have the requisite contacts within the state. 7. Federal court is a United States court so it can probably exercise personal jurisdiction if a D has the requisite contact anywhere in the entire U.S. ii. However, courts usually have the same authority to exercise personal jurisdiction as the local state courts. This is due to 5th amendment that like the 14th amendment does not automatically confer on a court the power to exercise personal jurisdiction. Typically, this authority must be given by a long arm statute. H. The Federal long Arm Provision: RULE 4(k)(1)(A) of the Federal Rule of Civ. Pro.: j. This is the long arm provision that applies in most federal cases. k. RULE: 4(k)(1)(A) says that a federal court can usually exercise personal jurisdiction over a D only if the courts of the state in which that federal court sits could do so. x. This rule helps the federal court system to avoid the large burden that people would put by trying to sue in federal court rather than in state court because without this rule personal jurisdiction would be easier to established in federal court. l. Can exercise PJ if: service or waiver of service AND state long arm statute must be satisfied. xi. Federal courts in which ever state you are in, you look at what the state long arm statute states. 8. You look to this because the federal court will borrow the states statute. xii. Long arm statute 4 (k) (1)(a) 9. Service or waiver of service AND 10. Due Process Clause I. Examples of Broader Authority Rule 4(k) m. Exception: xiii. RULE: 4(k)(1)(C): Provides an exception to 4(k)(1)(A), stating that a federal court may exercise broader jurisdiction whenever the court is authorized to do so under federal statute. 11. Example: Federal law authorizes nationwide personal jurisdiction in bankruptcy cases. xiv. RULE: 4(k)(2): for claims arising under federal law. The service of a “summons or filing a waiver of service extablishes PJ over a D if: the D is not subj to jurisdiction in any state’s court of GJ; and (b) exercising jurisdiction is consistent w/the US constitution laws. 12. States that personal jurisdiction is proper in federal question cases involving foreign defendants when no personal jurisdiction is consistent with the 5th amendment—that is only if D has sufficient contact with the U.S. xv. 4 (k)(2)- PJ if 13. service or waiver and 14. lawsuit is a federal question jurisdiction AND 15. no state curt can exercise PJ AND 16. exercise of PJ consistent w/5th amendment DPC xvi. contacts with anywhere in the US. xvii. RULE: 4(k)(1)(B): (“Bulge” Rule)—Confers broader personal jurisdiction authority. This rule provides that , if a D has been joined pursuant to Rule 14 (third-party claim) or Rule 19 (for necessary and indispensable parties), D is subject to personal jurisdiction in federal court as long as D is served within 100 miles of the federal courthouse.

CHAPTER 10- THE CONSTITUTIONAL REQUIREMENT OF NOTICE AND METHODS OF SERVICE OF PROCESS I. Introduction: a court must assert jurisdiction over her by an order to appear and defend the action, which is usually accomplished through service of process. 1. Service of process fulfills two functions A. It formally assets the courts authority over the defendant B. It informs her of the case so she can prepare to defend it II. Mullane v. Central Hanover Bank: The Constitutional Standard for Adequate Notice 2. is the last and usual service constitutional C. Federal Rule 4(e)(2)(B) allows service by leaving the summons and complint (if the D is a person) at the D’s dwelling house with a person of sutable age and discretion residing therein, a. However, some states allow service of process by leaving copies of the summons and complaint at the D’s “last and usual plave of abode” without the additional requirement of leaving them with a person residing there. 3. so how must notice be given to satisfy the Due Process Clause. D. The means required by due process must vary with the circumstances. Mullane establishes a broad constitutional standard rather than providing a mechanical answer. b. Justice Jackson suggests: when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. III. Implementing the Due Process Standard: Statutes and Rules Governing Service of Process 4. Service on the D must be: E. Constitutionally sufficient F. Authorized by a statute or rule of the court system in which the case is filed. 5. Some practicalities of service: who, what and when? G. what gets served on the D? c. Federal Rule 4(c)(1), the complaint and a summons must be served together on the D. i. Complaint -is the P’s initial pleading, setting forth the claims against the D. ii. Summons – is an official order of the court, commanding the D to appear and defend the action or suffer default H. Who serves process on the D? d. Generally, the duty to serve process is delegated to the P/ e. Federal Rule 4(c)(1) provides that “ the P does not serve it herself.” f. Federal Rule 4(c)(2) provides that “any person who is at least 18 years old and not a party may serve a summons and complaint g. P’s lawyer could do it herself, but more likely she will hire a private process server to do so or a sheriff or deputy sheriff authorized to serve process. I. when must service be made? h. The complaint and summons must be served after the complaint is filed. i. Rule 4(m) provides that the court must dismiss an action if service is not made on the D w/in 120 days after filing, or order service to be made w/in a specified time. iii. If P shows good cause for the failure to make service, the court must grant an extension of the time to make service “for an appropriate period. iv. If no good cause is shown, Rule 4(m) still authorizes the court to extend the time for service, but it has the discretion to dismiss instead. v. Dismissal for failure to make timely service would not bar the P from filing a new action, but the P would have to pay a new filing gee and would risk statute of limitations problems in refilling. J. Serving Natural Persons Under the Federal Rules j. federal Rule 4(e) provides 4 methods to serve the summons and complaint on an individual D: vi. deliver the papers to D personally (“in hand service”) wherever she can find the D. Fed.R.Civ.P. 4(e)(2)(A). vii. leave the summons and complaint at the D’s “dwelling or usual place of abode with someone of suitable age and discretion who resides there.” Fed.R.Civ. P. 4(e)(2)(B) viii. deliver the summons and complaint to an agent of the D authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(e)(2)(C) ix. follow the rules for service of process of the state where the federal courts sits or of the state in which service of process is made. K. Serving Corporations and other entities under Federal Rule 4- methods for serving a corporation (“association”) k. Delivering a copy of the summons and complaint to an officer, a managing agent, or general agent of the entity. Fed.R.Civ.P. 4(h)(1)(B). l. Delivering the papers to an agent authorized by law or by appointment or receive service of process. Fed. R.Civ.P. 4(h)(1)(B). this does not refer to a general business agent but one specifically empowered to receive service. m. Serving process under state rules for serving corporations, in either the state where the federal court sits or in the state where service is made. Fed.R.Civ.P. 4(h)(1)(A). L. Service on parties outside the United States- rule 4(f) provides several methods for serving process n. As provided by international agreements, such as the Hague Convention (provides a mechanism for sending the documents to a designated Central authority in the country where service is to be made which then completes service on the D) on the service abroad of Judicial and extrajudicial documents. Fed.R.Civ.P. 4(f)(1). o. Using methods for service of process in the country where service is made- requires researching the procedural rules of that coutry, which can be difficult, especially when those rules are in a different language. p. By personal delivery, unless prohibited by the law of the country where service is made q. By a form of mail requiring a signed receipt, unless prohibited by the law of the country where service is made. r. By seeking instructions fro man appropriate authority in the contry where service is made through a letter of request. s. By seeking a court order for alternative means of service. M. Avoiding technicalities: waiver of service of process t. Fed.R.Civ.P. 4(d)- P may ask the D to waive formal service. x. The P sends the D a notice of the action with two copies of the aiver form, the complaint, and a prepaid envelope for returning the waiver. xi. D have a duty to avoid the cost of formal service 1. If they do not return the waiver, they must par the costs of formal service, including the attorney’s fees for any motion to collect those cost: 2. Rule also offers an enticement: it gives them 60 days to answer instead of the usual 21. Fed.R.Civ.P. 4(d)(3) u. Clear implication of Fed.R.Civ.P. 4(d)- if the waiver is not returned the P must serve process through formal means in rule 4- non-compliance makes the non-complying D responsible for the cost of service N. if all else fails, how should service be made? v. Last resort- suppose that the P diligently pursues the methods of service available under rule 4(including state law options) but still is unable to prove that the D has received notice of the action. IV. The Relation of Service of Process to Personal jurisdiction 6. It does not follow that if the D is properly served, the court will have personal jurisdiction over her. 7. Service and PJ are separate though related principles O. PJ- requires that the D have an appropriate relationship to the state that makes it fair to require her to defend there P. Service of process- fulfills a separate due process requirement, providing notice of the suit to the D so she can appear and defend. 8. You must include a copy of the complaint, two copies of a waiver form, give at least 30 days, Q. Why would a D want to waive service of process- because he will get a longer period of time. V. Notice and Service: Summary of Basic Principles. Pg. 352

Feb 21
Notice and service of process
Jurisdiction by necessity: * Constitutional standard * State law of service cant apply if that federal rule decides to incorporate the state law, (ask joyce) * Doesn’t require that the D always receive actual notice. (doesn’t mean that actual notice to have actually reached the D in every case) * Service of process and waiver * Waiver * Service * Generally * On individuals * On entities * Relationship of service and personal jurisdiction

CHAPTER 11: BASIC VENUE- STATUTORY ALLOCATION OF CASES WITHIN A COURT SYSTEM

I. An introduction to Venue A. Venue basics- refers to the particular court within a court system where a P can file a law suit. S B. Purpose of Venue: 1. Venue requirements- exist to ensure that a case is litigated in a court that is conveniently located and has some connection to the lawsuit or to one or both of the parties. 2. Venue overlaps with personal jurisdiction in that both concepts offer consider the D’s relationship to the forum, but venue is neither constitutionally compelled 3. Statutes define which federal districts are proper venues and try, in a general way, to restrict litigation to the courts that are convenient given the facts of the case and the location of the parties. C. Distinguishing venue, subject matter jurisdiction, and personal jurisdiction 4. Venue differs from subject matter and personal jurisdiction by: a. Unlike subject matter and personal jurisdiction, the constitution does not restrict a P’s choice of venue b. P’s choice of venues are designed to ensure that the location of the suit is reasonable and convenient given the location of the evidence, the witness and the D. i. Often requires an examination of the P’s, the witnesses’ and the courts connection c. Venue turns on whether a particular court within a state is a convenient location for the suit. D. State venue statute 5. State statutes tend to authorize venue more expansively than the general federal venue statute 6. Notes and questions: the General Federal Venue: d. Venue, unlike personal jurisdiction, focuses on connections to specific federal districts, not to entire states: ii. Subsection (1)Venue is proper in “a judicial district where any D resides, if all Ds reside in the same state. e. Start with subsection (1) and ask whether “all D reside in the same state” f. Then look at (2) a judicial jurisdiction in which as substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or g. Then look at (3) a judicial district in which any D is subject to personal jurisdiction at the time of the action is commenced, if there is no district in which the action may otherwise be brought. II. The meaning of “resident” under subsection (1) E. A corporation, therefore, resides in every federal district where it would be subject to personal jurisdiction if that district were its own state. 7. §1391(c): provides that a corporate D resides (for venue purposes) in any district where it would be subject to personal jurisdiction if that district were viewed as its own state. h. (c): confers venue if the D would be subject to personal jurisdiction in that district if the D’s “contacts would be sufficient to subject it to personal jurisdiction if that district was a separate state. 8. Corporate defendants only need one shared district of residence under §1391(c) to satisfy subsection (1). III. THE FALLBACK PROVISIONS F. Subsection (3) applies in those rare cases where neither subsection (1) nor subsection (2) provides any venue where the action could be brought- in such a case and only in such a case, a court can “fall back” to subsection (3) 9. §1391(a)(3) states that venue could be proper in a “judicial district in which any D is subject to PJ at the time the action is commenced…” 10. § 1391(b)(3): a fall back option- IF “there is no district in which an action may otherwise be brought as provided in this section, 11. [then venue is proper in] any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action”

Class notes: * Venue doesn’t have a constitutional aspect * Venue- where a lawsuit can be brought and refers to where within the state the lawsuit can be brought. * Must first look at the state statutes to determine where the venue should be. * Check against 1391 to determine whether the venue is proper or not., there could be multiple judicial district. (rarely you will find that there is only one proper venue.) * If brought in an improper venue, it can generally be dismissed. * In federal system (§1406) improper venue, it can be either dismissed or transferred to a different federal judicial district. * §1404- transfer, even if venue is proper * Even if brought in proper venue, the case may be transferred anyway. * 1391 options for venue: * where does an individual “reside” (c)(1)? in the judicial district where the individual was domiciled. Domiciled (physical presence and where they intent to remain) in terms of the district. * Where does a corporation “reside”? corporate defendant resides] in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question.” organizations whether incorporated or not. * When there are multiple D’s? all D’s must reside in the same state and * Look to PJ to figure out Venue. * State with multiple federal judicial districts- look at 1391(d) * 1391(c)(2) not true that every * Corporate defendant resides “in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question” * 1391(d) * [BUT] “in a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State , and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts * you analyze for either quality or quantity to determine if the * do a contacts analysis with that federal judicial districts contacts within that district. * Need to know whether a corporation is subject to personal jurisdiction * §1391(b)(2): Venue is proper in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;” * foreign D: “a defendant not resident in the United States may be sued in any judicial district” * pg 370 hypo- first (b)(1), then (b)(2) and the * whether D is proper, is entirely different compared to whether v

CHAPTER 12: CHALLENGES TO VENUE: TRANSFERS AND DISMISSALS

I. Introduction: a client will want to have a lawsuit wherever it is more convenient for them and less convenient for the opponent. II. Statutory Transfers and Dismissal in Federal Court 1. Two types of venue related motions: a. § 1406 Cure or Waiver of Defects: (occurs when the D asserts that the case was filed in an improper venue.) (a) the district court of the district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. a. Authorizes a federal district court to dismiss a case that was filed in an improper federal venue or to transfer it to a federal venue where the suit could have been brought (if such a venue exists). b. “interest of justice”: a transfer is usually in the interest of justice because a transfer will save the P the time and expense of having to refile the claim in another forum. i. Transferor court decides to transfer the case, it can simply send the case file to the clerk of another federal district court and tell the parties to litigate in that court. ii. A transfer is easier, quicker, and less costly iii. A transfer avoids the possibility of the statute of limitations running because a transferred case is considered to have been filed the on the date when it was filed in the original court. iv. A judge can only transfer cases within the same court system. 1. State court cant “transfer” a case to a federal court- even one sitting in the same state- because a federal court is in a different court system. a. State cases can be “removed” to federal court, but state court has no control over the process. v. Federal district judge can transfer a case to another federal district court, even in another state, because both courts are in the federal court system. c. If the court dismisses the case, the P has to refile the case in a proper venue, pay a filing fee, and ensure proper service on the D. vi. If dismissed, the statute of limitations may already have run or may expire before the P can refile the case in a proper venue. b. 28 U.S.C §1404. Change of Venue: (although the venue is proper in the court where the lawsuit was filed, there is a more appropriate federal district (or division) where the case should be litigated.) (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. d. DOES NOT AUTHORIZE DISMISSAL, IT ONLY AUTHORIZES TRANSFER e. Usually brought by D and requires the court to consider whether: vii. The case “might have been brought (proper venue, PJ and SMJ)” in the alternative venue, viii. And if so, whether transferring the case to that venue would promote the convenience of the parties and witnesses ix. As well as the interest of justice

| Cases filed in Wrong Venue | Cases Filed in the Correct Venue | Motion to Transfer | 28 U.S.C. § 1406 | 28 U.S.C. § 1404 | Motion to Dismiss | 28 U.S.C. § 1406 and Federal Rule 12(b)(3) | Forum non conveniens (CL Doctrine) |

2. Doctrine of forum non conveniens: means a case can be dismissed due to inconvenience. 3. Limitations on intra-system transfers: not only must the transferee court be a proper venue, but § 1406 specifies that a transferee court be one in which the case “could have been brought (-that court would have proper venue and could have exercised both personal and subject matter jurisdiction)” (§1404 uses similar language). 4. Waiving objection to venue: (recall that PJ can be waived, but SM cannot) a party is considered to waive a motion to dismiss for lack of proper venue unless the motion is made at an appropriate time, usually quite early in the case (see rule 12(g)-(h)). 5. Consenting to venue: yes, contracting parties usually have forum selection clauses in their contracts, which courts give great weight to. 6. Can a federal court grant a venue-related motion to dismiss w/o first addressing subject matter and PJ? c. Yes. Supreme Court has held that a district court can dispose of a case without first determining whether the court has subject matter jurisdiction, but only if the dismissal does not involve a decision on the merits. f. For example- forum non conveniens dismissals and dismissals for lack of proper venue don’t involve a decision on the merits of the case. 7. Can a P move to transfer their own cases? Yes, but its typically a D who moves to transfer. III. Common Law Dismissals: Forum Non Conveniens 8. rationale for the forum non conveniens doctrine: d. why should courts have the authority to grant forum non conveniens dismissal? g. Judges lack the authority to transfer cases outside of their own court systems, so if a federal court is a proper venue and concludes that a foreign court is a more convenient location for the suit, the judges only option is to dismiss the case. x. §1404 does not give the district court the authority to dismiss such a case, so the forum non conveniens doctrine fills in the statutory gap. h. A forum non conveniens dismissal is premised on the assumption that the P can, in fact, refile the case in the foreign venue. 9. a narrow exception for a “clearly unsatisfactory remedy”: the court in Piper emphasized that it did not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non caonveniens inquiry. e. A dismissal might be improper, for example, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all. f. Courts have denied a motion to dismiss on forum non conveniens if there is no available alternative forum. 10. Conditioning forum non conveniens dismissal: dismissal is typically granted if the court can avoid predjudice to the P’s by placing conditions on the dismissal. g. Federal court can condition a dismissal on the D’s willingness to waive certain objecions to suit in the foreign forum (agreeing to waite a statute of limitations defense i. However, the federal court lacks authority to order the foreign court to take any action in the case. 11. The familiar forum non conveniens factors: congress enacted §1404 (a) so the federal judges could transfer cases directly to another district and save the P the time and expense of refilling the case after a forum non conveniens dismissal. h. Courts use a very similar analysis using public and private interests. 12. Court observes that a P forum choice is normally accorded great deference, but the choice is afforded less deference when the P’s are not from the forum.

Class notes: * Improper venue * § 1406- dismissal * §1406 - transfer * If in the interest of justice * Only transferred to a district, in which it “could have been brought” * Personal jurisdiction * Subject matter jurisdiction * Does SMJ vary by geographic location? * No, 1338. If there is federal subject matter jurisdiction, then there is SMJ in every other federal district. * Proper venue * Transfer- is moving it within a particular system- * Within one state court to another state court with in the same state * You cant transfer cases to other systems (i.e. a state case to another state)

* Proper venue * § 1404(a) – transfer * “Interest of justice”- for the convenience of parties and witnesses * To any district…in which it could’ve been brought (PJ, SMJ and Venue) or * To any district to which the parties have consented, even if it could not have been brought there originally. * We do not want to trump the P’s choice of forum. We have to give deference to the P’s choice of forum. * You must first look to see if it is a proper or improper venue? * Even when it is proper, it can still be dismissed. *

In determining if the court… has to balance a number of factors
(standard of review - would be the abuse of discretion):

Piper Aircraft Company v. Reyno * Middle district court of Penn was dealing with the forum non conveniens * Must weigh public and private interest factors to determine where it should be heard * Poor law does not make the law inadequate.

Forum Non conveniens: does the P have an adequate alternative forum? * If yes, then balance factors * If no, then dismiss

Joinder: * If there is more than one P v. D, you use a joinder * Add a COA to bring in a joinder or add another D * Federal rule of civil procedure- consult one or more joinder rule: * Rule 18: P v. D * P can bring as many claims as P wants to bring to D.(regardless if the claims are related or unrelated). * Rule 20:

CHAPTER 17: JOINDER OF CLAIMS AND PARTIES

I. INTRODUCTION 1. All procedural systems have rules that determine the scope of joinder of claims and parties in a single action 2. Federal courts- rules found in the federal rules of civil procedure. 3. Each state adopts rules of procedure for its courts, either by statute or through rules adopted by the states highest court

II. JOINDER OF MULTIPLE CLAIMS UNDER THE FEDERAL RULES 4. How many claims a P may assert in a single lawsuit? A. Rule could confine the P to asserting a single claim. B. P can bring any claims against D, so long as the P seeks the same relief on those claims. (i.e. when P seeks only money damages for personal injury) C. Rules might allow P to sue D on any theory and for any relief, so long as the claims all arise out of the same events D. The rules might take an even more liberal approach to joinder of claims, allowing P to sue D on any claims she has against it, even claims arising from unrelated events. 5. Federal Rule approach E. Rule 18(a): most liberal approach of the four approaches above. a. It allows a P to assert any claims she has against oppenent, whether related or unrelated: i. A party asserting a claim, counterclaim, crossclaim or 3rd party claim may joins as independent or alternative claims, as many claims as it has against an opposing party. 6. Notes and questions: Joinder of Claims F. Rules as revolution: b. Early days of English Common Law: ii. Right to join was extremely limited iii. Claims were conceptualized in distinct categories and often handled in different courts iv. Actions at law could not always be joined together, even if they arose from the same event. 7. How are claims joined in a complaint? G. Rule 18(a): authorizes “joining” claims in a single suit- claims may be asserted as different counts or “claims for relief” in a single complaint, to be litigated together in a single lawsuit (see Fed. R. Civ. P. 8(d)(3)) c. Unless the court orders otherwise. 8. Joinder of unrelated claims under Rule 18(a): H. Rule 18(a): allows a party to assert unrelated claims as well. d. Rationale: why not! Parties are already in court, represented by counsel and poised to settle their differences. If joinder rule only allowed joinder of related claims, parties would spend time and money litigating whether a particular claim was “related” to the others in the case. 9. Trial of unrelated claims joined under Rule 18(a): I. Under Rule 18(1): P determines the initial scope of the litigation by joining whatever claims she chooses. J. Rule 42(b): authorizes the trial judge to order separate trials: e. For convenience, to avoid prejudice, or to expedite and economize, the court [i.e. the federal district judge] may order a separate issues, claims, cross-claims or 3rd-party claims. K. Under Fed. R. Civ. P. 21: P may sever the claims completely or order separate trials of unrelated claims to avoid confusion or save time 10. Bringing a suit later on claims that could have been joined in prior action: L. Claim preclusion (res judicata): bars a party who has sued a D once on a set of facts from doing so again. It avoids multiple suits about the same facts and prevents litigants form harassing adversaries by suing again for events they already litigated in a prior action.

III. JOINDER OF THE PARTIES TO THE ORIGINAL ACTION 11. In most cases, P decides who the parties to the case will be by suing along with other P’s if she chooses to and by naming one or more Ds in the action M. BUT RULE 20 (a) places some limits on the P’s choice: f. Rule 20(a)(1): allows Ps to sue together if they assert claims that v. “arise out of the same transaction, occurrence, or series of transactions or occurrences; vi. and [if their claims involve] any question of law or fact common to all P vii. multiple Ps who are suing for different remedies may join under Rule 20(a)(1). g. Rule 20(a)(2): Ds may be sued together if the same two criteria are met. viii. Allows P to bring a claim to sue alternative Ds in a single action. (i.e. suing 2 cops because P doesn’t know which one assaulted her) N. Rule 20(a)(1)-(2): are authorized, but not required (pg. 597) h. Requiring P to sue (compulsory joinder) all possible Ds will greatly constrict Ps choices. O. The federal rules do require joinder of certain parties of a case cannot be fully adjudicated without their participation (see Fed. R. Civ. P. 19)

IV. COUNTERCLAIMS UNDER THE FEDERAL RULES 12. Counterclaim: a claim for relief by a defending party against the party who is claiming relief from her. Fed. R. Civ. P. 13. P. Compulsory counterclaim: a counterclaim that must be asserted to be cognizable because it relates to the opposing party’s claim and arises out of the same subject matter. i. If D fails to assert a compulsory counterclaim in the original action, that claim may not be brought in a later separate action ix. Exceptions: Fed. R. Civ. P. 13(a) Q. Permissive counterclaim: a counterclaim that need not be asserted to be cognizable because it does not arise out of the same subject matter as the opposing party’s claim or involves third parties over which the court does not have jurisdiction- THE CLAIMS MAY BE BORUGHT IN A LATER SEPARATE ACTION. j. These claims may be litigated jointly up until trial, but will likely be separated for trial under Rule 42(b). 13. Fed. R. Civ. P. 13(a)(1)(A): provides that a counterclaim is compulsory (i.e. it must be asserted in the same action) if it “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” R. If an action isn’t asserted as required under the rule, it is a waiver. k. Waiver: puts the teeth in the compulsory counterclaim rule and tells the defending party that she must “use it” or “lose it” if she chooses not to do so. 14. Fed. R. Civ. P. 13(b): allowing assertion of any other counterclaim. 15. Supplemental jurisdiction: provides that if a federal court has subject matter jurisdiction over a case, it may also heat certain other related claims in the action, such as compulsory counterclaims. S. Permissive counterclaims: are not related to the main claim and often must have their own basis for subject matter jurisdiction. 16. Same transaction or occurrence “Purported Tests”: test are merely suggestive T. Are the issues of fact and law raised in the claim and the counterclaim largely the same? U. Would res judicata bat a subsequent suit on the party’s counterclaim, absent the compulsory counterclaim rule? V. Will substantially the same evidence support or refute the claim as well as the counterclaim? W. Is there a logical relationship between the claim and the counter claim? (broadest test)

V. CROSS CLAIMS AGAINST COPARTIES 17. Rule 13(g): a pleading may state as a crossclaim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. X. Test: they must arise out of the transaction or occurrence that is the subject matter of the original action. Y. Limited to those that arise out of a trasaction or occurens that is the subject matter of the main claim. Z. This rule is permissive: party may choose to sue on this claim separately without fear of waiving the claim. 18. Crossclaim: is a claim against a coparty, someone on the same side of the v. 19. Rule 13(h): expressly authorizes adding additional parties to both crossclaims and counter claims, [. Can be someone whom the P did not choose to sue.

Counterclaims Yee ⇄ Procter | Crossclaim Protect ↗ Yee ↓Rule 13(g) ↘ Garza | Adding a Party to a Crossclaim Protect ↗ Yee → Pemberton ↘ ↓ Rule 13(g) ↓ Rule 13(h) Garza Lopez |

VI. JOINDER BY DEFENDING PARTIES: IMPLEADER UNDER RULE 14 20. Impleader- (third-party complaint) \. Rule 14: allows a defending party to assert a claim against a stranger to the lawsuit. (standard is narrower) l. A defending part may, as a 3rd party P, serve a summons and complaint upon a nonparty who is or may be liable to it for all or part of the claim against it. ]. To implead a 3rd party: D must allege that the new party is or may be liable to the D for all or part of any judgment the P recovers from the D (it’s a claim to pass on liability, not for independent loss the defendant has sustained.) m. 3rd party D: must be server with a summons and complaint. (under Rule 4) n. Once impleaded: may or must assert counterclaims under Rules 13(a) and (b). and cross-claims against co-parties under 13(g) and (h). o. 3rd party D may also bring in additional parties who may be liable to reimburse her for all or part of the D’s claim against her, under Rule 14(a)(5). ^. Under 14(a)(2)(C): authorizes the 3rd party D to “assert against the P any defense the 3rd party P has to the P’s claim. (theory: if D doesn’t incur liability, then the 3rd party D wins too) _. THERE MUST BE PERSONAL JURISDICTION `. 3rd party P- is the asserting impleader. a. 3rd party D- the party brought into the claim b. Requirement for impleader: requirement is met if the impleaded 3rd party may have to reimburse the D, partially or fully, if the D loses on the main claim. c. Two typical impleader claims: p. Contribution q. Indemnification d. Impleading a party directly liable to the P: a D cannot use Rule 14(a) to bring in a party who would only be liable directly to the P, but who wouldn’t be liable to the D. e. Judicial discretion to deny impleader: r. Rule 14(a)(1): 3rd party may be impleaded without leave of court within 14 days of service of the answer to the complaint. x. After that period, impleader requires a motion and approval by the judge. 21. Erikins v. Case Power and Equipment

VII. ASSERTING ADDITIONAL CLAIMS UNDER RULE 14 22. Once a party has been impleaded under Rule 14(a): f. The rule allows other claims to be asserted. – s. 3rd party D may assert any claim she has against the P arising from the transaction or occurrence that gave rise to the main claim. Fed. R. Civ. P. 14(a)(2)(D). t. P can assert claim against 3rd party D that meet the transaction-or-occurrence test. Fed. R. Civ. P. 14(a)(2)(D). xi. If either party asserts the claim against the other they are opposing parties, triggering counterclaim provisions. Rules 13(a) and (b). xii. 3rd party D must assert counter claims it has against 3rd party P. Rule 13(a)(1), and may assert other counter claims under Rule 13(b). u. If several 3rd party D are brought in, they become “coparties” who may assert crossclaims against each other.

VIII. JOINDER CLAIMS AND PARTIES: SUMMARY OF BASIC PRINCIPALS 23. Fdfs

CHAPTER 18 COMPLEX JOINDER: INTERVENTION, INTERPLEADER AND REQUIRED PARTIES

I. JOINDER OF PARTIES UNDER RULE 19 1. Rule 19: addresses situations in which a person has not been made a party to an action, but ought to participate in the litigation for the court to fairly and adequately resolve the dispute. A. Three step framework for analyzing such cases: a. 1st step: whether the absentee should have been made a party to the suit? i. Rule 19(a): provides that a person should be joined “if feasible,” if one of several conditions is met: 1. In that person’s absence, the court cannot accord complete relief among existing parties. Fed. R. Civ. P. 19(a)(1)(A) 2. That person [the absentee] claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absent may: a. As a practical matter impair or impede the person’s ability to protect that interest Fed. R. Civ. P. 19(a)(1)(B)(i) b. Leave an existing party subject to a substantial risk of incurring double multiple, or otherwise inconsistent obligations because of the interest. Fed. R. Civ. P. 19(a)(1)(B)(ii) 3. Rule 19(a) decisions will be reviewed under abusive discretion b. 2nd step: determining whether joinder is feasible? ii. First: the party may not be subject to personal jurisdiction in the court where the P has brought suit. iii. Second: in a diversity case, joinder of the absentee is from the same state as an opposing party, negating subject matter jurisdiction. iv. Third: joining an absentee as a D may make venue improper because the absentee is from a different state than other Ds. c. 3rd Step: Deciding whether to dismiss or continue- 19(b) v. if it is not feasible to join the absentee for one of the reasons just described, the court has to decide whether to proceed w/o the absentee, despite the potential problems that call for joinder under Rule 19(a), or to dismiss the case. vi. Rule 19(b) list 4 factors for the court to consider in deciding whether in equity and good conscience, the action should proceed among the existing parties or should be dismissed: 4. Consider the risk of prejudice to the absentee or the existing parties if the case foes forward; 5. Ways to lessen such prejudice by fashioning the judgment; 6. Whether a judgment rendered in the person’s absence will be adequate; and 7. Whether the P will have an adequate remedy if the action is dismissed for nonjoinder. vii. Rule 19(b) guides the judge in making a second discretionary decision: 8. Whether the case should proceed without the absentee, or 9. Proceed on the basis of limited relief that will not prejudice the interests of the absentee, or 10. Be dismissed because the absentee cannot be made a party. viii. Rule 19(b) also recognizes that if an absentee should be joined but cannot be, the judge may be able to hear the case but limit the relief to avoid adverse effects due to the absence of an interested party. 2. Raising the Rule 19 joinder issue: B. Rule 19 deals with two fundamental questions: d. Who will be parties to the action? e. Whether the case should proceed in its present form? C. A party does not waive the objection by failing to raise it at the outset; the objection may still be made later in the suit. Fed. R. Civ. P. 12(h)(2) 3. Some lawyers use Rule 19 as a forum-shopping tools. 4. Rule 19 does not require joinder of other tortfeasors

II. INTERVENTION UNDER RULE 24 5. Rule 24: authorizes non-parties to intervene, that is, to become a party to the litigation at their own initiative, even though they were not sued in the original action. 6. The non-party is a “stranger to the suit” who was not named as a party. The resolution of the case will likely have a significant practical effect on the non-party’s interests. 7. Provisions of Rule 24: D. 2 categories of intervenors: f. Intervenors under Rule 24(a): an intervenor has a right to participate under this rule if a federal statute authorizes intervention Fed. R. Civ. P. 24(a)(1) or if she: ix. (2) claims an interest in relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. g. Permissive intervenors under Rule 24(b): x. Rule 24(b)(1)(B): provides an alternative route to intervention if an applicant does not satisfy the standard for intervention as of right under Rule 24(a). 11. Court may grant permission if the applicant “has a claim or defense that shares with the main action a common question of law or fact- this standard is extremely broad. xi. Rule 24(b)(3): While standard is broad- judge should only allow permissive intervention if she determines that the person’s interest merits participation and that allowing her to participate will not “unduly delay or predjudice the adjudication of the original parties’ rights.” E. Rule 24(a)(2)- this subsection contains 2 requirements, and an exception: h. The intervenor must have an interest relating to the property transaction at issue in the case. i. There must be a risk that her ability to protect that interest will be impaired if the case is decided without participation, xii. Even if the first two requirements are met: the applicant will not be allowed to intervene if her interest is adequately protected by those who are already parties to the case.
A required party- they must be joined if they can be joined.
Can be joined if: * PJ over person * Cant be joined if there is not diversity * If venue is proper
Reason to join people: * A persons absence makes it impossible to give a remedy that is being requested; it has to be impossible to resolve the dispute if the person is not joined. * Person has an interest relating to the subject of the action and proceeding to an outcome without the person” may as a practical matter impair or impede the person’s ability to protect his/her interest * If any of those are satisfied, the person must be joined.
Provident case Torrington v. Yost: procedural posture was a 12(b) motion to dismiss * Inconsistentcies * If INA is a required party and they must be joined, means that * If court says that they must then they must * Joining INA not feasible because it erase diversity * Court will balance Rule 19(b) * To figure out what is fair. * How does the court balance the various factors to determine if INA is indespensible: * To what exent of judgment rendered in the persons absence may be prejudicial to the person or those already parties * The extent to which by protective provisions in the judgment, the predjudice can be lessened or avoided * Whether judgment rendered in the persons absence will be adequate and * Whether the P will have an adequate remedy if the action is dismissed for non-joinder * Case was dismissed * Once decided to dismiss, INA gets label of indispensible * Rule 24: * No hard or fast deadline * Timely motion * Federal statute that gives unconditional right to intervene *

CHAPTER 20: Supplemental Jurisdiction in the Federal Courts

I. INTRODUCTION: Related State Law Claims in Federal Court 1. Although federal rules authorize the joinder of a claim does not mean that a federal court has SMJ to hear a claim II. The Constitutional Framework for Supplemental Jurisditcion: United Mine workers v. Gibbs 2. A federal court cannot hear a claim unless the framers authorize federal courts to do so in Article III, Section 2 of the U.S Constitution but nothing in that section explicitly authorizes jurisdiction over related state claims. 3. United Mine Workers v. Gibbs g. Brief Fact Summary. This case arises from a dispute between the United Mine Workers and the Southern Labor Union over representation of workers in the southern Appalachian coal fields. Gibbs (Respondent) was awarded compensatory and punitive damages in this action against the United Mine Workers (Petitioner) for violations of Section 303 of the Labor Management Relations Act and the common law of Tennessee. 

 h. Synopsis of Rule of Law. In cases where a plaintiff has both federal and state claims against the defendant, although there may be no diversity jurisdiction, the federal court has discretion to exercise pendent jurisdiction over the state claim based upon state law if the state-created claim and the federal claim derive from a common nucleus of operative fact, and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding.

i. FACTS: * Tennessee Consolidated Coal Co. laid off 100 of UMW's Local 5881 mine workers. * Grundy Co., a subsidiary of TCCC, hired Gibbs as a mine superintendent to try to open a new mine on TCCC's property using members of the Southern Labor Union. * Grundy also gave Gibbs a contract to haul the mine's coal to the nearest railroad loading point. * Armed members of UMW's Local 5881 forcibly prevented the opening of the mine and threatened Gibbs because they said TCCC had promised them the jobs. * A picket line was maintained for 9 mos. * Gibbs lost his job, never performed his haulage contract. He also lost other contracts in nearby areas. * He claimed these effects were a result of a union plan against him, and sued the international union (UMW). * Issue: Whether the relationship between the existing state-created claim and the federal claim were close enough to permit the conclusion that the entire action before the court comprises but one constitutional case? * Holding: Yes. Pendent jurisdiction of a court is discretionary; it is not a right of the plaintiff. In determining whether pendent jurisdiction is appropriate, the court should consider judicial economy, convenience, and fairness to the litigants. Although it is possible in this case, that the court could have decided to dismiss the state claim, the circumstances show no error in refusing to do so. Therefore, the Supreme Court of the United States reversed the decision of the court of * Discussion: The court focused on the rule that both the state and federal claims derive from a common nucleus of operative fact. The court noted that although the federal law claims were ultimately dismissed, it was certainly not true that the federal issues were so remote or played such a minor role at trial that in effect only the state claims were litigated. Furthermore, the court noted that due to the nature of supplemental jurisdiction, it is not always apparent at the time of filing the complaint that the federal issues will be dismissed. The court stated that it often occurs at different stages in the litigation process

4. Notes and Questions: United Mine Workers v. Gibbs: j. The problem restated: v. Gibbs sued the union on 2 claims, as he was authorized under Rule 18(a). w. Federal district court had jurisdiction over the federal labor law claim, but not original jurisdiction over the stat law interference with the contract claim x. Hearing both cases would promote efficiency and consistency of outcomes, but cannot be done if the court lacks a basis for SMJ over the related state law claim k. Tactical Choices: y. If pendent jurisdiction did not exist, you could file in federal court on the federal claim and in state court on the state claim. z. Alternatively, you could file in federal court and give up the state claim {. Another strategy and probably the best would be to file suit in state court on both the state claim and federal claim since states have concurrent jurisdiction over claims arising under federal law l. UMW v. Gibbs (Part I) |. Since there is no explicit authority in Article III, Section 2 for federal courts to hear related state law claims like those asserted in Gibbs how can the court do so? xiii. Gibbs holds that when a federal court has jurisdiction over a case, because P asserts a claim arising under federal law, it obtains jurisdiction not just over the federal claim, but over the entire case, that is, over the dispute that includes the federal claim. xiv. If P asserts one substantial claim under federal law, the court acquires power to hear that claim and all other claims that arise from the same factual dispute—the same “nucleus of operative fact”. xv. Focuses on the facts involved in the dispute, not on legal theories.

m. UMV. Gibbs (Part II): Discretion to decline pendent jurisdiction: }. Gibbs holds that the federal court should decide whether it has the power to exercise pendent jurisdiction over the stat law claims at the outset of the case (be resolved on the pleadings), as with other jurisdictional questions. ~. However, Gibbs concludes that federal courts need not always exercise pendent jurisdiction even if they have the power to do so. . REASONS WHY A COURT MIGHT DECLINE JURISDICTION OVER RELATED STATE LAW CLAIMS (even though it has the power to hear them)—Brennan. xvi. Federal claim drops out early—The court might choose not to hear the related state claims if the federal claim in the case is dismissed relatively early in the litigation 1. Federal court may retain jurisdiction of pendent claims after the federal claim drops out if the case has been through substantial pretrial litigation xvii. State issues predominate: If the federal judge can see that P’s case is fundamentally a state law case, to which a minor or dubious federal claim has been appended, she might decline jurisdiction over the predominant state law claims. xviii. Surer Footed Readings of state law: Under Gibbs, the federal court may also decline to exercise jurisdiction if the state law claims present novel or complex issues of state law. xix. Likelihood of Jury Confusion: If it would be confusing ot try the state and federal claims together, it may make sense to dismiss the state law claims.

III. PP. 736-741; Notes And Questions: The Supplemental Jurisdiction Statute 5. The term supplemental jurisdiction refers to added state law claims, whether they would have been dubbed pendent or ancillary under prior case law. 6. What is the meaning of the term “case or controversy” in § 1367(a) n. Statute authorizes the court to hear all claims in the action that arise out of the same nucleus of operative facts as the original claim that confers original jurisdiction on the federal court.

7. The Exceptions: § 1367(b): o. In this subsection the drafters provided that supplemental jurisdiction shall not extent to certain categories of claims, even though they are within the grant of supplemental jurisdiction in subsection (a) . Over claims by Ps against personas made parties under Rule 14, 19, 20 or 24. . Over claims by persons proposed to be joined as Ps under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332 8. Statutory discretion: In 28 U.S.C. § 1367(c), Congress provided authority for federal judges to decline jurisdiction over supplemental claims p. The reasons in subsections (1), (2), and (3) echo reasons Justice Brennan described in Gibbs for declining supplemental jurisdiction. q. Subsection (4) is a “catchall” provision that authorizes the court to decline supp jurisdiction in “Exceptional circumstances” if there are other compelling reasons for declining jurisdiction.

CHAPTER 13- BASIC PLEADING I. Introduction: Paul Pollmer was hit by a car in a crosswalk in Virginia, causing leg and back injuries that required extended hospitalization and unpaid medical leave from his job. You could file such a claim in the local court , or fed court if Paul and David are citizens of different states and Paul’s claim exceeds $75,000. You must file a pleading to begin the lawsuit. A. Pleading: a pleading is paper containing factual assertions (allegations) that support jurisdiction and legal claims in a civil lawsuit. 1. Complaint: this is the 1st pleading, which is a short and plain statement of the P’s claim showing that he is entitled to relief. Rule 8(a). AND a demand/prayer for relief. Rule 8(a)(3). 2. Answer: this is the D’s 1st pleading, which responds to the factual allegations of the complaint and asserts defenses and sometimes claims by a D. Rule 8(b)-(c) a. Counterclaim: occurs if a D includes in his answer a claim against the P. b. Cross-claim: occurs if the D includes in his answer a claim against a co-D i. Then these parties may also file an answer. B. Historically the purposes of pleadings have been: 3. Giving notice of the nature of a claim or defense 4. Stating facts 5. Narrowing issues for litigation and 6. Helping the court throw out bogus claims and defenses without the burden of trial.
How much a party has to plead depends substantially on the relative weight that a procedural system assigns to each of these functions. C. Demurrer: a D is permitted to file this motion before having to answer. 7. An insufficient claim can be attacked in federal court by D’s motion to dismiss the complaint for failure to state a claim, Fed. R. Civ. P. Rule 12(b)(6).

CHAPTER 14- RESPONDING TO THE COMPLAINT (OR NOT?) I. Introduction: A. The rules of civil procedure do not force a D to respond affirmatively in any way to a complaint 1. They spell out the consequences of not responding – a sequence of steps driven by the non-defaulting party that can lead to a default judgment. B. Rule 55: authorizes default judgments if the non-defaulting party and the court carefully follow the prescribed procedures 2. a substantial number of D’s suffer default judgment because: a. They are judgment proof (they have no assets from which the judgment could be collected b. Because they gamble that the default judgment winner will not track down their assets in order to enforce the judgment. C. If the court does not dismiss a complaint on a pre-answer motion, then the D must answer the complaint 3. Rule 8: sets forth the fairly specific requirements for admissions and denials and provides an illustrative list of affirmative defense- defenses setting forth new matter outside the original complaint D. Rule 12: permits a D to assert several different defenses and objections to a complaint, he may not ordinarily asset them one at a time. 4. The rule also mandates joinder of available defenses and objections in omnibus pre-answer motion and imposes waiver as a penalty for leaving certain defenses out. E. Hunter v. Serv-Tech, inc. 5. Rule: c. Rule 12(h)(1): requires that objections to personal jurisdiction, venue, process and service of process be raised in a party’s first responsive pleading. Under this rule, Ds wishing to raise any of these four defenses must do so in their first responsive pleading, either Rule 12 motion to dismiss or an answer, or the omitted defense is waived d. Rule 12(h)(2): can be raised anytime up to and including trial, including a motion for summary judgment e. Rule 12(g)(2): is specific about what a litigant must do to avoid waiving his 12(b)(2)-(5) defenses if he chooses to move for dismissal prior to answering: “ a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. i. a party that makes a motion to dismiss under this Rule, a party that makes a motion to dismiss under Rule 12(b) prior to answering must consolidate all its Rule 12 defenses into one motion. If it omits the defenses in the pre-answer motion, then it is waived. F. Rule 12(g): “omnibus motion rule” requires a party to consolidate all of the Rule 12 defenses and objections then available to it in a single omnibus pre-answer motion, instead of presenting them serially. 6. Omitting any of these defenses from the pre-answer not only prevents a party from raising it again by another pre-answer motion, but also from raising the Rule (b)(2)-(5) defenses again by any means. 7. Does not require a party to file a pre-answer motion. G. Rule 12(h)(2): does not permit a second pre-answer motion to dismiss for failure to state a claim or to join a party who is required to be joined by Rule 19, but it does permit a party to raise these defenses by a post-answer motion or pleading any time before the clothes of the trial H. Rule 12(h)(3): impliedly permits a motion to dismiss for lack of subject matter jurisdiction at any time I. Answering the complaint: 8. A D must file a motion within 10 days after notice of the court’s action on the failed pre-answer motion. (since a court may take months to rule on Rule 12 motions, such a motion can buy much more time than just the 10 days if it proves unsuccessful) f. 1st: Can assert a “left over” Rule 12(b) defenses, that is, any defense the party has not waived by omitting it from a pre-answer motion g. 2nd: It must admit or deny any factual allegations. Rule 8(b)(1)(B) h. 3rd: D may have other reasons why P should not be able to recover. These defenses are all descendants of the common law plea of confession and avoidance, now called affirmative defenses, that provide excuses to liability on the basis of facts outside of the complaint. Rule 8(c). i. 4th: counterclaim and cross-claims may be filed. j. Finally: D not required to elect among these options (Rule 8(d)(2)); it may incorporate them all into its answer, as the form answer in the Rules show.

I. Doe v. Smith: Smith made a sex tape, unbeknownst to Doe and w/o her consent, which was published to other persons by Smith. Both are citizens of Ill. and are in federal ct. because one of her claims is that the video recording is an unauthorized interception and its disclosure is forbidden by the federal wiretapping statute. 1. Rule: A. Rule 9(b): has a short list of things that Ps must plead with particularity B. Complaints: initiate the litigation but need not cover everything necessary for the P to win; factual details and legal arguments come later. a. A complaint suffices if any facts consistent with its allegations, and showing entitlement to prevail, could be established by affidavit or testimony at a trial. (Conley) b. Consistency proviso: litigants may plead themselves out of court by alleging facts that defeat recovery. (this is a reason why some complaints may be dismissed pronto.) i. Complaints also may be dismissed when they show that the D did no wrong. II. Notes and questions: Doe v. Smith 2. Elements of the federal claim: C. Do the rules require a pleader to plead allegations respecting each and every element (often called pleading a prima facie claim)? c. In Doe, ct says no. Rule 8(a) requires Doe only plead a “claim” sufficient to let Smith know what she is complaining about. III. The Evolving Standard of Plausible Pleading 3. Conley was the standard invoked for most reported cases, until Twombly. 4. Twombly: D. The Twombly decision raised the barrier of sufficient pleading from possible ( a statement of claim that could entitle the pleader to relief on some legal theory) to plausible, if still short of the probable. IV. Ashcroft v. Iqbal: Respondent is resident of Pakistan and Muslim. After 9/11 attacks, arrested in US on criminal charges and detained by federal officials in Brooklyn NY. “High Interest”. Alleges that the two petitioners (Attorney General Ashcroft and FBI Director Muller) adopted an unconstitutional policy that subjected respondent to harsh conditions on account of his race, religion, or national origin. District ct. denied petitioners’ motion to dismiss. 2nd Cir. Ct. of Appeals concluded that Twombly was not universally applicable, but instead content specific, reasoning that it applied only to cases in which the complexity of the facts and the availability of competing inferences requires additional fats for the court to decide whether the P’s claim was plausible. It found that Respondents claim of race, religion and national origin did not present these problems and was not subject to Twombly. V. Notes and questions: Plausible Pleading. 5. The elements of a claim: E. Every pleading problem begins with substantive law. d. In Iqbal: begins by taking note of the elements a P must plead to state a claim of unconstitutional discrimination against officials entitled to assert the defense of qualified immunity. 6. Twombly-Iqbal test: F. 1st: Are the allegations well pleaded? e. In order to determine if a pleading states a claim showing that the pleader is entitled to relief, the court must still accept as true the factual allegations of the complaint ii. Caveat: the court should accept as true only the “well-pleaded allegations.” (Only after a ct had found that there are well-pleaded factual allegations, can it assume their veracity.) 1. Well-pleaded allegation: an allegation is well pleaded when it is more than a conclusory statement- it is one so generic that it may be cut and pasted w/o modification into any number of diverse fact patterns. G. 2nd: Are the well-pleaded allegations plausible? f. Court must determine if the well-pleaded allegations give rise to an entitlement of relief, which is a “context- specific task.” (but not limited to anti-trust claims) iii. When there is parallel conduct, meaning both the “guilty” (liability-creating) and the innocent explanations are possible), then: 2. The P must plead something “more by way of factual content to nudge his claim…across the line from conceivable to plausible. g. This view differs from Conley in that: iv. First: It does not seem to draw all reasonable inferences in favor of pleader; dueling inferences appear to cancel each other out, unless one is more plausible than the other. v. Second: the ct insists on “more by way of factual content,” while courts construing Conley standard were fond of asserting the Ps need not plead facts. 7. Critiques of plausible pleading: H. First: it may deny access to court to Ps and prospective Ps with meritorious claims who cannot satisfy those decisions’ requirements either because they lack the resources to engage in extensive pre-filing investigation or because of informational asymmetries. I. Second: requires largely unconstrained comparative judgments by judges the “ depend…on a judge’s background knowledge and assumptions which seem every but as vulnerable to the biasing effect of that individual’s cultural predispositions as are judgments about adjudicative facts. J. Third: these judgments come awfully close to deciding facts that Ps would otherwise be entitled to try to a jury.

CLASS NOTES * Pre-answer motions * A motion- you make an argument on why they should grant your motion. * Answer: * What is contained within the answer? * You must respond to each and every allegation in the complaint * Rule 8 * No general denial in the court * You enumerate your affirmative defenses- * Go beyond attacking the prima facie case, the essence of an affirmative defense is that you still prevail because of “x”, regardless if it satisfies a prima facie case * D bears the burden of proof. * They must be asserted early. * (2)-(5) responses must go in your first response. * P may file a motion to strike in an answer. 12(f)- challenges the legal sufficiency of a defense. * Reply: only a court could allow a reply. * Complaint- answer- pleadings * Rule 12(c) motion: * Can be brought by either a P or a D * When a D brings it, it is more or less the same as a 12(b)(6) motion * States that even if everything you say is true, I cant be held liable for all the stuff that’s in your complain “often called a so what motion” * As a matter of law, even if what is in your complaint, I will still win. * Closed pleading is when the pre-answer motion * P’s 12(c) motion: P states that they win as a matter of law. * Motion for summary judgment: I deserve to win as a matter of law, no need to go on a trial to this, but it is different from a 12(b)(6) and is based on the actual facts that have come out in the discovery process. * Rule 12(a) gives you the time line for the motion: how much time do you have to file an answer? 14 days after the date on which you receive notice of the courts action. * Rule 8(a)(2): any pleading which states an affirmative claim for relief. * How much detail has to be present in the complaint? * In Doe v. Smith, * Conley: A complaint will satisfy 8(a)(2) will support any facts, which give rise to a claim for relief. * Pleadings in federal court. * P did not actually state that the video recorder actually had sound. * D claims that P did not establish a sufficient complaint. * Twombly: it was plausible that they did not agree to engage in the anti-competitive behavior. * The court for the first time state that the claimaint had to state a plausible claim for relief, must show that it is not just possible, but rather show that it is plausible *

CHAPTER 16: AMENDING PLEADINGS

I. INTRODUCTION 1. Common law prohibited almost any departure from the original pleading, but it also frowned on variances between the pleading and the proof at trial. 2. Rule 15 allows amendments and variances to original pleadings. II. AMENDING WITHOUT LEAVE OF COURT 3. Rule 15(a): authorizes amendment once as a matter of course-without leave- in three circumstances: i. First: a party may amend the original pleading once w/o leave of court within 21 days of serving that pleading. Fed. R. Civ. P. 15(a)(1)(A). ii. Second: if the original pleading is one to which a responsive pleading is required, a party may amend the original pleading within 21 days after service of the responsive pleading. 1. Responsive pleading: Rule 7(a) describes the pleading that require a responsive pleading. a. A D must file an answer to a complaint. b. P must also serve an answer to a counter claim c. A co-D must serve an answer to a cross-claim d. A 3rd party D must serve an answer to a 3rd party complaint. iii. Third: if a party files a motion under Rule 12(b) to dismiss a complaint, counterclaim, cross-claim, or third-party complaint; or files a motion under Rule 12(e) (for a definite statement); or makes a motion under Rule 12(f) (to strike), then the pleader may amend within 21 days after the motion is served. 4. The 21-days are not cumulative: iv. 21 days because it is such a short period that is makes it unlikely that the opposing party or the court has yet expended substantial resources in responding to the original pleading or that the party will be prejudiced in preparing to defend against the amended pleading. (not always true) 5. Amendment without leave is possible only once under any circumstances. v. The second time, the amending party must get leave unless the opposing party consents 6. Rule 15(a)(1)(B): gives D 21 days to amend after being served with the Rule 12(f) motion. 7. Amending before trial is allowed. III. BEEK V. AQUASILDE ‘N’ DIVE CORP 8. Facts: vi. Beeck (P) sustained severe injuries while riding a water slide at a company outing. Beeck’s complaint named Aquaslide (D) as the manufacturer and sought to recover damages. After three insurance companies investigated the matter Aquaslide admitted that it was the manufacturer, but several months later denied having manufactured the slide after a visit to the site by Aquaslide’s president. vii. The trial court granted defendant corporation’s motion to amend its answer to deny having manufactured the slide and to have that issue resolved in a separate trial. The jury in the separate trial found in favor of D, and the first court granted summary judgment in favor of D. P appealed. 9. Issue: May a defendant amend its answer to deny a fact which it had previously admitted? 10. Holding: yes 11. Rule: viii. Fed. R. Civ. P. 15(a) provides in part that once issue is joined in a lawsuit, a party may amend his pleading, only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires. ix. in ruling on a motion for leave to amend, the trial court must inquire into the issue of prejudice to the opposing party, in light of the particular facts of the case. 2. Grand or denial of leave relies on: e. The sound discretions of the trial court f. Is reviewable only for an abuse of discretion x. A defendant may amend its answer to deny a fact which it had previously admitted. xi. The trial court judge’s decision to permit D to amend its pleading and to bifurcate the trial was reviewed under the standard of abuse of discretion. xii. On appeal the court held that the trial court had not abused its discretion in allowing the amendment. The court also ruled that the grant of a separate trial was within the trial court judge’s discretion because the severity of the plaintiff’s injuries would have been prejudicial to the defendant’s claim of non-manufacture. xiii. The party opposing an amendment to a pleading must show undue prejudice. The court rejected P’s contention that moving to amend after the statute of limitations had run on P’s claim demonstrated bad faith. P had relied on the conclusions of three insurance companies and did not deny having manufactured the slide until D’s president visited the site. 12. Notes: FRCP 15(a)(2): Other Amendments. In all other cases, a party may amend
its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires. IV. NOTES AND QUESTIONS: AMENDMENTS WITH LEAVE OF THE COURT 13. Factors in granting leave to amend: xiv. Reasons for amendment: discovery of new facts, more rarely, new legal theories, is a common reason for amendment. (ct will also consider why the new matter was only recently discovered) xv. Amending party’s diligence: deliberate delay of adding new claim or defenses until the eve of the trial in order to deprive its opponent of the opportunity to prepare, would be a sound reason for the court to deny leave to amend. (Bad faith) xvi. Any prejudice that the amendment may cause the opposing party: “undue prejudice” consists of prejudice to preparing to defend- in collecting and presenting evidence- that flows from the lateness of the amendment (preparation prejudice). xvii. Whether the amendment would be futile as a matter of law: 3. a court does not have to grant leave when an amendment would be futile; court must analyze a proposed amendment as if it were before the court on a motion to dismiss pursuant tot Rule 12(b)(6). 4. An amendment can be futile because it fails to state a claim or defense under applicable law. xviii. The amending party’s prior amendments, if any V. AMENDING CLAIMS OR DEFENSES AFTER THE LIMITATIONS PERIOD 14. Statute of limitations: provides a period (usually in years) within which a claim must be filed. xix. Period runs from the point at which the claim accrued or came into existence, until the period is tolled by filing of a complaint, or, if the statute permits, by service of the complaint w/in some relatively short period of time after filing (the service period). xx. The purpose of SOL is to protect parties against the loss of evidence and to give them respite after a fixed period from the emotional distress and financial uncertainty of possible litigation. VI. MOORE V. BAKER 15. Facts: xxi. Plaintiff Judith Moore consulted Defendant Dr. Baker about a blockage of her carotid artery. Defendant recommended surgery and warned her about its risks. Plaintiff signed a consent form. The operation went badly, she suffered brain damage and is permanently and severely disabled. Plaintiff sued Defendant. The initial complaint alleged that he had violated Georgia’s informed consent law by failing to advise her of an alternative therapy, EDTA. xxii. Defendant filed a motion for summary judgment on the issue of informed consent. xxiii. Twenty days later, Plaintiff moved to amend her complaint to assert allegations of negligence by Defendant in the performance of the surgery and post-operative care of Plaintiff. xxiv. The district court refused to allow Plaintiff to amend her complaint on grounds that the statute of limitations bars the claim asserted in Plaintiff’s proposed amended complaint unless the amended complaint relates back to the date of the original complaint. 
 16. Issue: whether the original complaint gave notice to the D of the claim now being asserted? 17. Holding: no. 18. Rule: xxv. The determination of whether an amended complaint may relate back to the date of the original complaint is whether the original complaint gave sufficient notice or warning to the defendant of the possibility of a suit involving the claim now being asserted. xxvi. Rule 15(c): an amendment relates back to the original filing whenever the claim or defense asserted in the amended pleading arouse out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading. 19. Analysis: xxvii. P’s allegations in the original complaint contain noting to put D on notice that the new claims of negligence might be asserted. xxviii. The alleged acts of negligence occurred at different times and involved separate and distinct conduct. xxix. In order to recover on the neg. claim contained in her amended complaint, P would’ve had to prove completely different fact than would otherwise have been required to recover on the informed consent claim in the original complaint. xxx. Ct concluded that P’s new claim did not arise out of the same conduct, transaction or occurrence as the claims in the orignal complaint; therefore, the lower court did not abuse its discretion in deny P’s motion to amend her complaint. VII. NOTES AND QUESTIONS: RELATION BACK CLAIMS 20. Threshold issue: once the window for amending without leave has closed, or a party has already used it one, the party must obtain leave to amend xxxi. Except: where an issue tried by consent is treated under Rule 15(b) as if had been raised in the pleading. 21. Threshold issue overlaps with the relation-back issue: if the amendment doesn’t relate back, leave should be denied on grounds of futility. 22. Relation back for transactionally related claims or defenses: even if the limitation law does not expressly allow relation back, Rule 15(c)(2) allows it if the new claim or defense arouse out of the conduct, transaction or occurrence set out in the original pleading 23. Rule 15(c)(1)(A): provides that if a law supplying the SOL also provides for relation back, then the court must apply that law. xxxii. Such state law provisions will apply if state law governs SOL; if the controlling SOL law affords a more forgiving principle of relation back than the one provided in this rule, it should be available to save the claim. xxxiii. Rule 15(c): As long as a P has sued someone before the SOL runs, she may add other Ds later w/o regard to the limitations in Rule 15(c).

CHAPTER 27: DISPOSITIONS WITHOUT TRIAL I. INTRODUCTION 1. 3 devises that can end a law suit without a trial: A. “Voluntary dismissal”-Rule 41(a): authorizes a party to voluntarily dismiss a complaint without prejudice to suing on the same claim or claims at another time or in another court under some circumstances. a. P’s voluntarily dismiss for the following practical reasons: forum or judge shopping. B. Involuntary dismissal: occurs when the judge grants a motion to dismiss the case. A party can also suffer an involuntary dismissal for failure to prosecute its action or as a sanction for failure to comply with a discovery order. C. Summary judgment: a judgment granted on a claim or defense about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law. Rule 56(a) b. Court considers the following to determine whether there is a genuine issue of material fact rather than one of law: i. The contents of the pleadings, motions and additional evidence adduced by the parties. c. If all the facts that the judge needs to apply the law are undisputed, the judge can go ahead and apply the law w/o waiting for trail. ii. Are the facts undisputed? 1. Parties can agree to or stipulate that facts are undisputed. 2. A party may also try to show in advance of trial that the evidence is so one sided that no reasonable fact finder could dispute the existence or non-existence of certain facts. d. A motion for summary judgment can be filed up until 30 days after the close discovery.

CHAPTER 29: JUDGMENTS AS A MATTER OF LAW (DIRECTED VERDICT AND JNOV) I. INTRODUCTION A. Motions for judgments as a matter of law under Rule 50(a) (Directed verdict/”judgment as a matter of law) 1. Rule 50(a): a ruling by a trial judge, taking a case from the jury because the evidence will permit only one reasonable verdict. a. the moving party asks the judge to direct a verdict in his favor because no reasonable jury could render a verdict for the non-moving party based on the evidence presented at trial. b. Serves 2 important functions: i. It notifies a non-moving party that that party has failed to offer evidence concerning a key element of her case, thus giving her an opportunity to correct to omission. (helps to ensure that the case turns on its merits and not on an inadvertent omission of trial testimony) ii. Prevents the judge and the jury from having to hear the rest of a case for which an outcome is clear. B. Renewed Motions for Judgment as a Matter of Law under Rule 50(b) (JNOV) 2. if a judge denies a motion for directed verdict, the moving party can renew his motion for judgment as a matter of law, the judge can set aside the jury’s verdict and enter into judgment for the other party. 3. Rule 50(b): authorizes the judge to grant “renewed” motion for judgment as a matter of law. (also referred to as a motion for a judgment notwithstanding the verdict. c. States: if the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted thae action to the jury subject to the court’s later deciding the legal questions raised by the motion. d. This rule is constitutional and does NOT violate the 7th amendment, 4. Judicial reluctance to grant a Rule 50(a) motion: judges will only grant these when the argument for doing so is so strand and the likelihood of reversal is low, because judges prefer to avoid the risk of a time consuming and expensive retrial. e. Additionally, if the appellate court reverses a district courts decision to grant a Rule 50(b) motion for judgment as a low, they can remand the case with instructions for the trial court to enter a judgment based on the jury’s original verdict. iii. Motion must be filed within 28 days of the final judgment has been entered.
Class notes:

CHAPTER 33: CLAIM PRECULUSION I. INTRODUCTION: 1. Claim preclusion (res judicata): prevents parties from relitigating claims that they fully litigated in a previous case. a. Claim preclusions apply when a P files a new, second case against the defendant. b. Basic principle: “is that once you’ve been sued for something, you cant be sued for it again.” There is peace. c. Res judicata: sometimes this term is used to refer claim or issue preclusion or both. d. A P cant sue a D for the same claim twice 2. Issue preclusion (collateral estoppel): prevents parties from relitigating issues that they previously litigated in another case. e. Provides that once an issue has been resolved between parties, it cant be relitigated between the said parties. A. CLAIM PRECLUSION’S IMPORTANCE 1. Serves several important values: a. Fairness b. Protects the public’s perception of the justice system c. Promotes efficiency. B. DISTINGUISHING CLAIM PRECLUSION FROM OTHER DOCTRINES 2. Claim preclusion is inapplicable to: d. Retrials a. Retrials are ordered for a number of reasons (erroneous exclusion of key evidence or remand for errors occurring during the proceedings); however, claim preclusion doesn’t apply because the situations that are a cause for a retrial are simply a continuation of the original case. e. Collateral proceedings b. Occurs when a P initiates and enforcement action. Like retrial it is not new and the enforcement action is collateral to the original proceeding, making claim preclusion inapplicable f. Double jeopardy: c. Double jeopardy functions a lot like claim preclusion, however: a. Double jeopardy applies only to criminal cases, while claim preclusion applies to civil cases. b. Double jeopardy is a constitutional doctrine; Claim preclusion is usually a common law doctrine. c. Double jeopardy applies only after acquittal and thus only benefits the D; in contrast, civil judgments have preclusive effect regardless of who won the case. II. DEFINIGN A CLAIM: RIVER PARK, INC V. CITY OF HIGHLAND PARK A. 3 elements must be satisfied before a claim will be barred under the claim preclusion doctrine: 3. The claim must be the same claim that was litigated in a previous case 4. The previously litigated claim must have resulted in a valid, final judgment on the merits 5. The parties who litigated the previous claim must typically be the same parties who are litigating the current claim. B. River Park, Inc v. City of Highland Park 6. Facts: River Park had ownership of 162 acres of land in the City of Highland Park. In July 1988, Spatz (a builder for P) petitioned D on behalf of River Park to obtain approval for its plans to develop the Country Club property. On November 14, 1989, the commission approved the planned development. However, D did not communicate to Spatz that the City of Highland Park wanted to purchase the property for itself. P was to provide the commission and the city council with final engineering plans in order to obtain final approval.

According to the complaint, D intentionally undermined Spatz’s efforts to provide necessary engineering plans, knowing that the delays would cause a bank to foreclose on the prop and allow the D to buy the land at a discount. P alleged that D’s failure to act on the plans and vote on their 2nd petition deprived them of their prop right w/o due process of law.

On July 22, 1993- district ct. issued a written order and found that P failed to allege a violation of due process. Ct of appeals affirmed the dismissal of he P’s federal complaint. P then filed a 6-count complaint against D in circuit court and the following remained: (1) tortuous interference with business expectancy, (2) breach of implied k, and (3) abuse of governmental power. Appellate court found that the doctrine of res judicata did not apply because the COA asserted in P’s federal complaint differed from the COA alleged in complaint filed in state court. 7. Rule: f. Doctrine of res judicata: a final judgment on the merits rendered by a court of competent jurisdiction acts as a bar to a subsequent suit between the parties involving the same COA. (this is an affirmative defense- doesn’t have to go in pre-answer motion but does have to go in the answer) i. the bar extends to what was actually decided in the first action, as well as those matters that could have been decided in that suit. ii. For this doctrine to apply the following must be satisfied: 1. There was a final judgment on the merits rendered by a court of competent jurisdiction 2. There is identity of COA 3. There is an identity of parties or their privies. g. 2 tests for determining whether a COA are the same for purposes of res judicata: iii. Same evidence test: a 2nd suit is barred if the evidence needed to sustain the second suit would have sustained the first, or if the same facts were essential to maintain both actions. 4. The definition of what constitutes a COA is narrower than under the transactional test. iv. Transactional test: provides that the assertion of different kinds of theories of relief still constitutes a single COA if a single group of operative facts give rise to the assertions of relief. 5. Two claims may be a part of the same transaction, yet be considered separate COA because the evidence needed to support the theories on which they are based differs. 6. This is a more pragmatic test- a claim is viewed in “factual terms” and considered “coterminous with the transaction, regardless of the # of substantive theories or variant forms of relief flowing from those theories, that may be available to P and regardless of the variations in the evidence needed to support the theories or rights. 7. Separate legal theories of recover will be considered the same COA for purposes of res judicata, if they arise from a single group of operative facts. h. Restatement: (abandoned the same evidence test v. “Dimensions of ‘Claim’ for Purposes of Merger or Bar- General Rule Concerning ‘Splitting’: 8. when a valid and final judgment rendered in an action extinguishes the P’s claim pursuant to the rules of merger or bar…, the claim extinguished includes all rights of the P to remedies against the D with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. 9. What factual grouping constitutes a ‘transaction,’ and what groupings constitute a ‘series’ are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. vi. Elements of claim preclusion: 10. Judgment in prior suit was valid, final and on the merits a. How do you know if it is valid? i. It is valid if the court issuing the judgment had SJ, PJ, and notice. ii. For our purposes in class, assume that it is valid, unless told otherwise. b. What makes it final? iii. Majority: If entered by the trial court iv. Minority: appellate process exhausted c. On the merits? v. Deals with the substantive issues; non-procedural resolution. vi. Most courts will give a SOL a on the merits evaluation 11. Subsequent suit is between same parties and their privies d. #1: A-B; #2: A-B; #3: A-B; #4: C-B vii. The only way the B can have claim preclusion is if C and A are prive to eachother. viii. For purposes of our class, assume that parties are not in privity unless told so. 12. Subsequent suit asserts the same COA/claim (COA and claims are synonymous) this is where most of the action comes out of. e. What is a claim or a COA: ix. Claim: x. Use transactional test or primary rights test.

8. Analysis: i. Lawsuit #2 is barred by claim preclusion. j. Ct. applied the transactional test and found that the P’s claims for breach of implied k and abuse of governmental power are the same COA as the § 1983 claim alleged in their federal complaint. k. P’s federal and state claims are the same COA for purposes of res judicata because they arise from the same core of operative facts. 9. Notes: l. Applying the transactional test: vii. In federal litigation, P alleged the D violated its due process rights (that the D engaged in a conspiracy to delay the permitting process so that D could buy P’s Prop). viii. In state litigation, P offered different theories of recovery (tortuous interference, breach of implied k, and abuse of government), but those theories relied on the same factual allegations as the federal due process claim. Therefore, constituting the same claim for preclusion purposes. m. Applying the same evidence test: ix. It is arguable that the evidence that is necessary to prove the state law claims would not have sufficed to prove the federal due process claim. As a result, the courts adoption of the same evidence test might have led to the conclusion that claim preclusion was inapplicable. n. Primary rights: under this test, a P has a separate claim for each right that the D has violated. It is a narrower definition of a claim than either transactional or same evidence test. x. Know this because it is the test that is used in CA. o. Transactional test has become the most commonly used definition of a claim because: xi. It encourages claimants to bring all related COA in a single case or risk losing the opportunity to litigate those COA, xii. Reduces the likelihood of conflicting results and arguably protects the publics image of the justice sys most effectively. xiii. Promotes the interests of fairness to D’s because it offers the broadest protection against serial lawsuits. p. Claim preclusion acts as a joinder rule because all of these should be argued in the very beginning

III. VALID, FINAL JUDGMENTS ON THE MERITS C. VALIDITY OF THE JUDGMENT 10. Judgments lacking in subject matter or PJ are invalid. q. Exception: when the D responded to the lawsuit and both parties litigated the case without raising the jurisdictional problem. 11. Courts have concluded that, unless a district court’s decision to hear the case “was a manifest abuse of authority” or would “substantially infringe the authority of another tribunal,” claim preclusion should apply to a judgment, even where the ct lacked subject matter jurisdiction. D. FINALITY OF THE JUDGMENT 12. A judgment does not have claim preclusion until it is final. 13. The majority of courts, including the federal courts, have concluded that a judgment is final for preclusion purposes when the trial court enters a judgment, even if the losing party might subsequently file a post-trial motion, such as a motion for a new trial, and even if the losing party appeals. 14. If a judgment is on appeal and the same claim is pending in anther court, the other court will typically await the completion of the appeal in the original case before determining whether claim preclusion applies. r. But if the other court grants a dismissal on claim preclusion ground while the appeal of the original party can usually set aside the second courts dismissal by filing a post-judgment motion or timely appeal. Rule 60(b)(5). E. JUDGMENT ON THE MERITS 15. A judgment must be “on the merits” for it to have claim preclusive effect. This suggests that a claimant has an opportunity to litigate her claim and address the merits of the case, at least in some respects. 16. There is a growing trend in favor of giving statute of limitations dismissal claims claim preclusive effect. IV. EXCEPTION TO CLAIM PRECLUSION F. Even when all the elements of the claim preclusion doctrine are satisfied, the court will not apply it when: 17. The parties have agreed in terms or in effect that the P may split his claim, or the D has acquiesced therein; or 18. The courts in the first action has expressly reversed the P’s right to maintain a second action; or 19. The P was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the P desires in the second action to rely on that theory or to seek that remedy or form of relief; or 20. The judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme, or it is the sense of the scheme that the P should be permitted to split his claim; or 21. For reasons of substantive policy in a case involving a continuing or recurrent wrong, the P is given an option to sue once for the total harm, both past and prospective, or to sue form time to time for damages incurred to the date of suit, and chooses latter course; or 22. It is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason, such as the apparent invalidity of a continuing restrain or condition of having a vital relation to personal liberty or the failure of the prior litigation to yield a coherent disposition of controversy. Restatement (Second) of Judgments § 26(1) (1982). Don’t need to memorize

CHAPTER 34: ISSUE PRECLUSION: FURTHER LIMITS TO RELITIGATION I. INTRODUCTION: THE LOGIC OF ISSUE PRECLUSION: prevents parties from re-litigating issues that have actually litigated and determined by a valid and final judgment in a prior lawsuit A. Issue preclusion (collateral estoppel): isp; fair if: 1. The issue in the two lawsuits is the same 2. That issue was actually litigated in lawsuit #1 3. It was litigated with a full and fair opportunity, so that we have substantial confidence in the outcome (or perhaps more accurately, in the opportunity for a reliable outcome) 4. It was actually decided 5. It was essential to the judgment in lawsuit #1, and not gratuitous (and perhaps unappealable) finding B. Analysis pointer: 6. Start by identifying the 1st lawsuit that reaches a final judgment, we call this lawsuit #1 a. Caution: this is not always the first lawsuit filed 7. Next, decide whether an issue decided in lawsuit #1 arises again in lawsuit #2 8. Finally, consider the circumstances and quality of the litigation in lawsuit #1in order to decide whether an issue decided in lawsuit #1 will have preclusive effect in lawsuit #2.

II. ELEMENTS OF ISSUE PRECLUSION AND ITS EXCEPTIONS C. Restatement (Second) of Judgments § 27: when an issue of a fact or law is actually litigated and determined by a: 9. valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. D. A party seeking to invoke issue preclusion must establish: 10. That the issue to be precluded is the same issue that was decided in lawsuit #1 11. That the issue was actually litigated in lawsuit #1, 12. The party sought to be precluded in lawsuit #2 had a full and fair opportunity to litigate in lawsuit #1, 13. That issue was decided in lawsuit #1, 14. That issue was essential to the first judgment. E. Panniel v. Diaz 15. Facts:
P’s car was struck by an ambulance driven by Diaz (D) and owned by RWJ (hospital). P transported to RWJ and was treated for chest and shoulder pain. Following day P noticed a cut on the bottom of her right foot and returned to the hospital where she was diagnosed with diabetes. 23 days later the docs had to amputate all 5 toes on her right foot to remove the contaminated tissue. Several months later, she was diagnosed with carpal tunnel in her right arm. She sought pre-certification for carpal tunnel surgery from her PIP insurer, NJM. (NJM also covered D and RWJ)

August 19, 2002, NJM informed P that they would not cover the surgery because it wasn’t motor vehicle accident related. P demanded arbitration. After live/expert testimony, Arbitrator issued a written decision finding that “based on the credible medical evidence…the expenses related to the care of the right leg and foot and ultimately the amputation are casually related to the car accident and payable as medical expense benefits, and are subject to relevant fee schedule, copay, and deductible.” Carpal tunnel not found to be caused by accident.

P filed a motion for partial summary to preclude the D in the tort action from relitigating the arbitrators finding the arbitrator’s finding that the P’s amputation was the proximate cause of the accident. P also certified that she will not seek any damages from Ds (Diaz and RWJ) in excess of $1million in liability coverage afforded under their policy with NJM.

D’s oppose arguing that they were not parties to the PIP arbitration and can’t be fairly bound by any of the arbitrator’s findings. 16. Issue: Was there a substantial nexus between P’s injury and the car accident? 17. Rule: b. Doctrine of collateral estoppel (issue preclusion): is an equitable doctrine designed to promote efficient justice by avoiding the relitigation of matters, which have been fully and fairly disposed of. c. Issue preclusion elements (the party asserting the bar must show): 1. The issue to be precluded is identical to the issue decided in the prior proceeding; 2. The issue was actually litigated in the prior proceedings; 3. The court in the prior proceeding issued a final judgment on the merits; 4. The determination of the issue was essential to the prior judgment; and 5. The party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding. d. Even if all these elements are met, a court can decide not to apply the doctrine where: 6. There are sufficient countervailing interest, or 7. If it would not be fair to do so. e. Restatement exceptions: 8. The party against whom preclusion is sought could not as a matter of law, have obtained review of the judgment in the initial action; 9. The issue is one of law and a. The two actions involve claims that are substantially unrelated, or b. A new determination is warranted n order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; 10. A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in two courts or by factors relating to the allocation of jurisdiction between them; or 11. The party against whom preclusion is sough had a significantly heavier burden of persuasion with respect to the issue in the initial action that in the subsequent actions; the burden has shifted to this adversary; or the adversary has significantly heavier burden than he had in the first action. 12. There is clear and convincing need for a new determination of the issue c. Because of the potential adverse impact of the determination on the public interest of persons not themselves parties in the initial action, d. Because it was not sufficiently foreseeable at the time of the initial action that her issue would arise in the context of a subsequent action, or e. Because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances did not have and adequate opportunity or incentive to obtain full and fair adjudication 18. Analysis: f. First 4 elements are clearly met. The 5th is met because NJM retatined the sole discretion to contest the PIP claims, to pay them in full or to compromise them. Diaz and RWJ would have no right to interfere with NJM’s decision on those matters, therefore, NJM is sufficiently privy with its insureds (RWJ and Diaz). g. Exception 5: the doctrine of collateral estoppel should not be applied here to the disadvantage of the Ds on the crucial issue, because there are sufficient countervailing interest and it would not be fair to do so. h. The holding is limited to the question of preclusion against NJM’s insured in a third-party PI action. i. The court found that although Ds were privy to NJM, the public scheme of PI arbitration would suffer too severe and adverse impact from applying issue preclusion. 19. Notes: j. An issue on which relitigation is foreclosed may be one of: 13. Evidentiary fact, 14. ‘Ultimate fact’ (the application of law to fact) or 15. Law k. Issues can be litigated (submitted and determined) by: 16. An evidentiary hearing (arbitration) 17. Motions to dismiss for failure to state a claim 18. Summary judgment 19. Judgment on the pleadings 20. Directed verdict 21. Judgment as a matter of law 22. Judgment not withstanding the verdict. l. A jury in a civil action may not rule the same as jury in a criminal action based on the same facts. (Civil actions require a lower evidentiary standard- preponderance of evidence. Where as criminal is beyond an unreasonable doubt). 23. However, if the criminal case is litigated first, the D will have a hard time arguing he wasn’t guilty because the criminal court has already returned a verdict beyond a reasonable doubt that he was guilty. F. Cambria v. Jeffery: 20. Facts: P and D involved in car accident. D brought action against P for negligence to recover for bodily injury and damage to D’s car. District court found them both negligent and rendered judgment in favor of D.

P then filed suit against D for same action, jury granted it; however, judge entered verdict for D on the ground that the earlier judgment had adjucicated that the P was guilty of contrib. negligence. 21. Issue: 22. Rule: a fact merely found in a case becomes adjudicated only when it is shown to have been a basis of the relief, denial of relief, or other ultimate right established by the judgment. 23. Analysis: m. Earlier judgment was that Jeffery couldn’t recover against Cambria because Jeffery was contributory negligent. n. The judgment did not adjudicate that P’s servant was negligent. o. Verdict under leave reserved set aside. 24. Notes: p. The courts finding that Cambria was negligent was not legally essential to the outcome, it was a gratuitous finding without consequences. (both were guilty of contrib.. neg.) III. NON-MUTUAL ISSUE PRECLUSION G. Issue preclusion can be raised in cases that involve new parties. 25. Non-mutual preclusion: the parties in lawsuit #2 are not each able to use the judgment from lawsuit #1 to establish an issue in lawsuit #2. q. This is characterized as “defensive” issue preclusion: because the stranger (new party) uses issue preclusion as a shield to prevent the prior party from establishing its claim. r. Blonder –Tounge: a P was estopped from asserting a claim that the P had previously litigated and lost against another D. 26. Supreme court approved the use of defensive non-mutual preclusion in cases where it is clear that the party being estopped had fully and fairly litigated the common issue in the earlier litigation. s. In any lawsuit where a D, because of the mutuality principle is forced to present a compete defense on the merits to a claim which the P has fully litigated and lost in a prior action, there is an arguable misallocation of resources. H. NON-MUTUAL OFFENSIVE ISSUE PRECLUSION 27. P’s have sought to invoke issue preclusion to establish facts to prove its claim. 28. Parklane Hoisery Company, Inc. v. Shore t. Facts:
Shore brought class action against Parklane in a Federal District Court, alleging that Parklane had issued a materially false and misleading proxy statement in connection with a merger. According to complaint the proxy statement had violated §§14(a), 10(b) and 20(a) of the Security Exchange Act of 1934 and other rules and regulations provided by the SEC. Complaint sought damages, and rescission of the merger, and recovery costs.

BEFORE, this action the SEC filed suit against Parklane, alleging proxy statement was materially false and misleading in essentially the same respects as those alleged by shore. Injuctive relief request, DC fount it proxy statement was false and misleading and entered declaratory judgment…CT OF APPEALS AFFIRMED.

Parklane moved for partial summary judgment against petitioners, asserting that Parklane was estopped from relitigating the issues that had been resolved against them in the action between them and SEC.

DC denied, because of Parklanes 7th amendment right to a jury trial.

CT OF APPEALS, reversed, stating that a party who has had issues of fact determined against him after a full and fair opportunity to litigate in a non-jury trial is collaterally estopped from obtaining a subsequent jury trial of these same issues of fact.

u. Issue: Whether a party who has had issues of fact adjudicated adversely to it in an equitable action may be collaterally estopped from re-litigating the same issues before a jury in a subsequent legal action brought against it by a new party?

v. Rule:

24. Collateral estoppel: has a dual purpose of protecting litigants from the burden of re-litigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation. f. Mutuality doctrine: provides that neither party could use a prior judgment as an estoppel against the other unless both parties were bound by judgment. (until recently, issue preclusion was limited to this doctrine.) g. Offensive vs. Defensive Collateral estoppel: a. Offensive i. Offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive does. ii. A P will be able to rely on a previous judgment against a D, but will not be bound by that judgment if the D wins, creating a “wait and see” attitude in hoping that the 1st action P will result in favorable judgment. iii. General rule: in cases where the P could have joined in the earlier action or where , either for reasons listed above or for other reasons, the application of offensive estoppel would be unfair to a D, a trial judge should not allow the use of offensive collateral estoppel. b. Defensive: iv. Precludes a P from re-litigating identical issues by merely switching adversaries. v. Gives P a stronger incentive to join all potential Ds in the first action if possible. c. Application of offensive use of collateral estoppel is unfair when: vi. The P could have joined in the earlier action or where, vii. The application of offensive estoppel would be unfair to a D, viii. If the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the D, ix. Where the second action afford the D procedural opportunities unavailable in the first action that could readily cause a different result.

w. Analysis:
In this case, a P is seeking to estop a D from re-litigating the issues, which the D previously litigated and lost against another P.

Offensive use of collateral preclusion causes a likely increase in total amount of litigation, may be unfair to the D.

We have concluded that the preferable approach for dealing with these problems in fed courts is not to preclude the use of offensive use of collateral estoppel.

The application of offensive use of collateral estoppel will not here reward a private P who could have joined in the previous action, since Shore probably could not have joined in the injunctive action brought by the SEC even had he so desired.

Parklane received a full and fair opportunity to litigate their claims in the SEC action and are therefore estopped from re-litigating whether or not the proxy statement was misleading and materially false.

P did not adopt a wait and see approach. Parklane had a strong incentive to litigate in suit #1, judgment in the SEC action was not inconsistent with any previous decision, and there were enough of the same procedural opportunities. (parklane argues that they did not have a jury trial, Parklane states that they want to take their lawsuits to a jury)

Ct states that offensive non-mutual preclusion might be unfair in ways that are worrisome. It is potentially unfair * It does not promote judicial economy * If in lawsuit #1 the incentive was low for the D to litigate, then it would be unfair to bind the D to a low stakes litigation. * Where the second action affords the D procedural opportunities unavailable in the first action that could readily cause a different result
Defensive issue preclusion doesn’t give them and advantage

CHAPTER 24: STATE LAW IN FEDERAL COURTS: THE ERIE DOCTRINE

I. Section 34 of the Judiciary Act of 1789: provides that the federal courts should apply state law in cases that did not involve federal law. A. Rules of Decision Act (RDA): the laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil action in the courts of the US, in cases where they apply. 1. RDA instructs a federal court to apply federal law to the case if federal law governs the issue, but otherwise to decide the case under applicable principles of state substantive law. 2. In Swift v. Tyson: concluded that RDA required federal courts to apply relevant state statutes to a case, but that they were not bound to follow the common law rulings of state judges. a. Common law: refers to rules of law established by judges in deciding individual cases, as opposed to rules enacted by statutes. b. In Swift v. Tyson: judge concluded that the RDA did not require a federal court in a diversity case to apply any one state’s common law, but to look at all common law cases to divine the “true” common law rule on the issue before it. II. The Law That is Applied in Federal Courts (HANDOUT) B. Procedural law: (Before 1937) 3. Vertical uniformity- there was vertical uniformity, which means there was uniformity amount the courts- state and federal- in any given state with respect to procedural matters. 4. Horizontal uniformity- there was not necessarily horizontal uniformity, meaning uniformity among the courts of different states in procedural rules. C. Substantive Law: federal court was not required to follow all of the substantive law of the state in which the federal court was located. 5. RDA- required to apply laws of the several states as the rules of decision in the absence of an applicable rule located in the US Constitution or any federal statute or treaty. 6. Swift v. Tyson: c. Interpreted the term laws of several states to exclude state judicial opinions regarding legal issues of a…general nature, such as contract or commercial law. d. Interpreted the phrase narrowly, to include only state statutes, state judicial opinions interpreting those statutes, and state judicial opinions concerning real estate and other immovable and intra-territorial matters. e. Allowed the federal courts to develop their own body of general common law in a variety of areas. As a result: i. There was not necessarily vertical uniformity- because a federal court sitting in a particular state might not adopt the state-court rule on any given substantive issue. ii. there was sometimes horizontal uniformity, but only when they agreed with one another about the proper common law rule. D. AFTER 1937- 7. Federal courts followed a uniform body of federal procedural law and became obligated to follow substantive state common law because of: f. Federal Rules of Civil Procedure: provided a uniform system of procedure for the federal courts, were adopted by the Supreme Court on December 20, 1937. g. Erie Railroad Co v. Tompkins: required the application of state rules of decision to all non-federal matters, decided 4/25/1938. iii. Tompkins was struck by an object protruding from the train, fell to the ground and had his right arm severed by the wheels of the train. Erie claimed he was a trespasser and entitled only to protection from the RR willful and wanton conduct. Fed trial ct didn’t consider itself bound by the standard of liability that a Pa. ct would have applied to RR conduct. iv. On appeal Supreme Court over ruled Swift decision and held that the term “laws of the several states” in the RDA did include judicial opinions. Also held that it violated the US Constitution for the fed ct to have crafted its own standard or tort liability. h. After Erie: fed courts are far less free to create substantive federal common law. With limited exceptions: v. In the absence of an applicable provision from the United States Constitution, a federal statute (or regulation implementing the statute), or a federal treaty, the federal court must apply state substantive law, unless the situation falls into one of the limited categories of cases in which the federal court is empowered to create a federal common law rule of decision. E. Post-Erie Freedon to Ignore State Procedural Law 8. Federal cts are not necessarily obligated to apply state procedural law i. If state law conflicts with a valid Fed. R. Civ. P. (or a federal procedural statute or a provision of US Constitution that is procedural), then state law can’t apply. j. If state law does NOT conflict with an applicable and valid Fed. R. Civ. P. (or a federal procedural statute or a provision of US Constitution that is procedural), then the fed court MIGHT have to apply the state law. vi. Determination of whether federal court is required to apply state law will depend on the “unguided Erie analysis”: 1. Whether the application of federal rather than state law will encourage “forum-shopping” or lead to “inequitable administration” of the law. a. If failure to apply state law will lead to those bad results, then state law will be applied. 2. Whether the state procedural law is “bound up with state created rights and obligations”? b. If it is then, apply state law. III. Hanna v. Plumer: F. Facts:
Feb 16, 1963 Hanna (citizen of Ohio) filed compliant in District ct our Ma., claiming damages in excess of $10,000 for personal injuries resulting form an automobile accident in So. Carolina as a result of the neg. of Plumer (he was deceased at the time; Hanna served Mrs. Plumer). Hanna served Plumer pursant to Rule 4(d)(1).

DC- granted Plumer summary judgment, holding that the adequacy of the service was to be measured by § 9 of the Mass. General Laws.

Ct of Appeals- found that the relatively recent amendments to § 9 evince a clear legislative purpose to require personal notification within the year, concluded that the conflict of state and federal rules was over a substantive rather than a procedural matter, and affirmed. G. Issue: H. Rule: 9. Rules Enabling Act: k. Provides that the Supreme Court shall have the power to prescribe, by general rules, the forms of process, writs, pleadings and motions, and the practice and procedure of the district courts of the US in civil actions…such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury. vii. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. 10. Erie rule test: 11. York Outcome determination test: requires use of state law if ignoring it might affect the outcome.

I. Analysis 12. Reversed decision because the adoption of Rule 4(d)(1), designed to control service of process in diversity actions, neither exceed the congressional mandate embodied in the Rules Enabling Act. 13. State rule was in hand service, Rule 4 is leaving papers at his home with a person residing therein. 14. Held that different analyses are required conflicts between a Federal Rule and state law than for conflicts between federal judicial practice and state law. J. Notes: 15. Applying the York test: would proceed if the P was entitled to serve process under the Fed Rules, but would be barred if the state in-hand service rule must be used. 16. “Relatively unguided” Hanna Part I test: although state and federal practice differ, the difference is not substantial enough to lead a P to choose fed ct over state ct nor does it provide a significant litigation advantage that makes it “inequitable” to ignore state practices. l. Warren: looks at the difference in rules prospectively m. York: takes a retrospective approach. 17. Rules Enabling Act- Supreme Court appointed an Advisory Committee to draft the Rules and submit them to the court for approval. n. The court approved new rules and transmitted them to Congress. o. Under REA, rules approved by the court take effect 7 months after transmittal to Congress, unless Congress acts to intercept them. 18. Assessing the Validity of Federal Rule under Hanna Part II: p. Hanna concluded that Congress has very broad authority to regulate issues that relate to the processing of cases in the federal courts. q. Second: the test must be whether a rule really regulates procedure- the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them. r. Thus, the bottom line is that if Congress has authorized the Court to write the Rule and the Rule is “arguably procedural,” it is valid federal law that applies under the Supremacy Clause, even if it contradicts state practice. viii. However, there is a limit on the Congress’s delegation in REA: a Rule (even if it passes the test of “procedurality” ) may not “abridge, enlarge or modify and substantive right.