Civ Pro Attack I. PJ (General and Specific): PJ is the power of a ct to have binding authority over a person or his property. You must Acquire, Assert, and give Notice. A. (General) Acquire: PJ over someone for any lawsuit; 1. Individual i. Waiver: If you don’t bring up the defense you’re waiving it. OR ii. Consent: Sometimes you agree to PJ somewhere. OR iii. In-state service iv. Domicile: Where you live w/ the intent to remain indefinitely. 2. Corporation i. Waiver or Consent ii. Where there’s residency: Where you’re incorporated. iii. Substantial (an ample amt), systematic (routinely), and continuous (always a presence) contacts: Lawsuit doesn’t have to arise out of or relate to these contacts. B. (Specific) Acquire: PJ over someone for this suit. 1. Minimum Contacts: Did that person purposefully avail themselves and could they have reasonably anticipated being haled into ct there? And 2. Lawsuit must arise out of or relate to those contacts. AND 3. It must be fair: Look at the fairness factors from Asahi i. P’s interest in obtaining relief: does P have another place to sue if we kick this out of federal ct based on lack of PJ. ii. Judiciary’s interest: does the judiciary have an interest in hearing this case or not? iii. Actual inconvenience to the D in that forum (time and money). iv. State’s interests (in which the suit is brought) does the state have an interest? Asahi: No state interest b/c no parties from the state were left in the case. v. Shared social policies among the states: C. Assert: To assert PJ over the D we need a long arm statue (LAS). 1. 2 Types of LAS i. Limited: Statutory analysis, there has to be an actual LAS. 1. Does D have the type of contacts that constitutionally permit service of process? 2. Is service authorized by the LAS? This is a statutory analysis, not constitutional. ii. Non-limited: Is the exercise of service that is authorized Constitutional? This means that it will reach as far as due process allows.
D. Notice: 1. Mullane: If you have or can reasonably (w/ due diligence) get address, you must give actual notice. 2. FRCP 4: Service can be by anyone 18 years old or older, that isn’t a Party to the lawsuit. (4) types of service: 1. Personal service: hand delivery to party or person at his home Who resides therein that is competent and of suitable age. 2. Service by Mail: If allowed by the state ct. 3. Service by publication: (if it is the most reasonable way of giving notice) If you have a name or address or can get one, you must give actual notice. 4. Substituted Service: give to agent of person to be served. 3. Corporations, you must serve officer, not just an employee E. Ways to Raise PJ as a Defense: 1. Collateral Attack: Do not appear at the lawsuit and later attack the ct’s jurisdiction over you in a separate lawsuit. If you don’t show, you’ll get a default judgment against you but as long as you don’t have property in that state it won’t affect you. 2. FRCP 12(b)2: Attack the PJ problem in you first responsive pleading (answer or pre-answer motion) If the ct finds that they have PJ over you, you can still litigate on the merits (Direct Attack). 3. File a special appearance: Permits D to appear to only challenge jurisdiction. If he tries to challenge something other than jurisdiction, the ct may hold that he waived his right to be free from PJ w/out minimum contacts. This is in state only. Federal cts have general appearances (Force field)
II. SMJ: Fed cts are cts of limited jurisdiction, which means that the types of cases they hear will be limited by the Fed Constitution. Fed cts can hear Fed question or diversity cases. SMJ never gets waived. A. Federal Question (28 USC 1331): If a question arise under the US Constitution, statues, or treaties of the US; violation of Constitutional rights. 1. The P must be alleging that it is a Fed question. Mottley: (well plead complaint rule) Your complaint must allege a Fed question but not as a response to a possible defense. 2. Lawsuits w/ Fed and State claims: At least the Fed. part will go to Fed ct and if the cts don’t see fit to bring the state part as well, then it will go to state ct. See also supplemental jurisdiction. 3. You can’t avoid Fed. ct jurisdiction by using artful pleading to try to make a fed claim sound like a state claim.
B. Diversity (28 USC 1332): 1. No P can be from the same state as any D, determined by domicile. a. Domicile: residence and intent to remain there indefinitely at the time the complaint was filed. i. Mas V. Perry: You keep your old domicile until you replace it. ii. Corporation’s citizenship 1. Where they were incorporated AND 2. Principal place of business (need a & b) a. Nerve Center: Where the head decision makers are located b. Daily Activity: Where its principal place of business is 2. Amount in controversy must exceed $75,000, exclusive of costs and Interest. a. Rule 18: One P can add all of his claims against one D or J&S defendants. b. 2 P’s may join claims if there is a joint interest (usually ownership) c. D has the burden of proving to a legal certainty, that claim doesn’t exceed $75,000
III. Supplemental Jurisdiction: A. Can the claim get in on its own (SMJ analysis), if not, use supplemental B. Make sure there is an anchor claim that can get in. C. Does this claim arise from the same case or controversy as the original . D. If so, does it destroy diversity. 28 USC 1367(b): Doesn’t allow supplemental at certain times if it would destroy diversity. No D can destroy diversity. E. Will the judge allow it? [1367(c)] The judge had discretion as to whether he will hear the state case. He will take into consideration: 1. Judicial economy (avoid another trial) 2. Convenience (is it easy to hear the cases together; saves the D & P time in ct) 3. Fairness to litigants 4. Any important federal interest in the case. 5. State law dominates 6. State law issue novel Rule 42 allows a judge to sever claims if he elects to.
IV. Removal: A case may be removed from state ct. to fed ct if it could’ve been brought in fed ct in the first place. This means that the fed ct must have PJ, SMJ, and Venue. If the state has PJ, the fed ct will have it. No venue statue is needed. A. Removal only occurs from state to federal ct. B. D is the only one who can remove, if more than 1 D, then they must all agree C. Federal Question: D can remove regardless of the citizenship of the parties D. Diversity Case: It can only be removed if none of the Ds are from the state that the suit was brought in (they already have the home state advantage) F. If a P sues in state ct for a fed question claim and a state claim, the ct can remove the whole case and then send the state law claim back if it wants to G. If a case gets removed, it automatically gets removed to the same district as the state ct that the case is in right now. H. Actual procedure to remove: D must file a notice of removal which contains a short and plain statement of the grounds for removal and signed under Rule 11. I. D is allowed 30 days from the time he receives the initial pleading or complaint. If not w/in 30 days, the ct can still let him do it , but the ct won’t let him do it after 1 year in a diversity case. J. P can file a motion to remand if he doesn’t like what D is doing (send it back to state ct if there is a defect in the removal procedure) This must be done w/in 30 days of removal. V. Venue A. 28 USC 1391: answers the question of which district a trial should be held in. venue mostly deals w/ convenience. If venue isn’t proper, it doesn’t have to be dismissed, but it can just be transferred to the proper district. 1. If D doesn’t object to venue in the first responsive pleading, he has waived the defense. C. 28 USC 1391(a): deals with diversity suits. 1. The action must be brought in a district where any D resides, if they all live in the same state, OR (go to step 2, even if there’s venue in 1) 2. A district in which a substantial part of the events or omissions giving rise to the suit occurred or a substantial part of the property that is the subject of the action is situated (DON’T go to 3 unless 1 or 2 isn’t proper venue) 3. If neither apply, bring the suit in a district in which any D is subject to PJ at the time the suit is commenced.
D. 28 USC 1391(b): Federal question cases (1 & 2 from diversity is the same but if you can’t get it there go on to 3 below: 3. If Ds do not live in the same state, or you can’t bring the suit in the district where a substantial part of the events took place, you can bring suit in a district where any D can be found. E. 28 USC 1391(c): Corporations: A corp will be deemed to reside in any district in which it has contacts sufficient to subject it to PJ (PJ analysis) venue will be proper in whichever district a corporation has more contacts w/. After you figure out where a corp will reside, run it through 1391a & b F. Transfer of Venue: For the convenience of the parties and witnesses a district ct may transfer a civil action where it could have been brought originally by the P, under the following steps (2): 1. Does the ct you want to transfer it to have PJ, SMJ, and Venue? a. If yes, it can be transferred there b. No, it can’t be sent there 2. Does the present ct. have PJ, SMJ and Venue, if so, is there a more convenient forum? c. No, they must transfer or dismiss 3. Depending on answer in #2, decide what type of transfer it is: a. 28 USC 1404: Transfer for Convenience: i. (proper venue assumed & judges discretion on if its allowed) A ct can transfer the case to another ct for convenience but it must be a place where it might have been brought by the P (Hoffman) b. 28 USC 1406: Transfer for improper forum: ii. If venue is improper, the ct can dismiss or transfer to get proper venue. Cts prefer to transfer rather than dismiss. Venue is just a technicality. iii. State cts can’t transfer to another state ct and fed cts can’t transfer to another country. d. Forum Non Conveniens: i. Common law doctrine that can be used if statue doesn’t apply for a grossly inconvenient forum, allowing parties to refile in a ct where the original ct couldn’t transfer to. 1. Use this when transferring outside the US. 2. Cts won’t dismiss if there is no other forum to go to b/c inconvenience is better than no suit. 3. Cts can’t impose conditions upon the next lawsuit. 4. A fed ct uses FNC to get the case sent outside of the US, a state ct will use FNC to send it to another state.
ii. The judge looks at the following factors to determine if this transfer is unreasonable (Piper Aircraft): 1. Private Interests: Want trial to be a. Easy: access to source of proof b. Expeditious: c. Inexpensive: cost of obtaining attendance of witnesses 2. Public Interest: a. Problems w/ cts congestion b. Interest in having localized controversies decided at home c. Avoid conflicts of law d. Unfair burden on non-forum citizens w/ jury duty VI. Pleading A. P’s complaint: what goes into a complaint 1. Rule 3: An action is commenced when it is filed w/ the ct. P has 120 days to serve D. 2. Notice Pleading: P has to put enough facts in the complaint so the D will be on notice a. Rule 8(a) Complaint requires: i. Jurisdictional basis for the claim (short and plain) ii. Statement of the claim showing P is entitled to relief iii. Demand for judgment for the relief sought 1. May plead in the alternative or inconsistently b. Rule 9(b): Fraud and Mistake i. Exception to notice pleading; must be plead w/ particularity c. Rule 9(g): Special damages i. Must be specifically stated B. D’s response to the complaint: (Answer) 1. Rule 12(a): Within 20 days from the day you get served; 10 for motions. 2. Rule 12(B): Motions against the complaint 1. Lack of SMJ 2. Lack of PJ 3. Improper venue 4. Insufficiency of process (no notice, no summons) 5. Insufficiency of service of process (weren’t served properly) 6. Failure to state a claim upon which relief can be granted (usually seen w/ Fraud or Mistake) 7. Failure to join a necessary party
iii. 1 is NEVER waived iv. 2-5 are waived if not raised in first response (also 12 ef) Rule 12(h)(1) v. 6-7 can be made in any permitted pleading by motion for judgment on the pleading or at trial for judgment on the merits 8. 12(e): Motion for a more definite statement 9. 12(f): Motion to strike the pleading: challenges the entire complaint b/c certain rules of order weren’t followed. i. If ct denies motion, D must answer w/in 10 days or time remaining in original 20 ii. If D asks for a more definite statement, P gets 10 days after service and D gets 10 days or remaining time 2. Answering the Complaint: a. Rule 15: Answer gives notice back to P and should be allowed to be liberally amended b. D can either i. Deny the allegations ii. Admit iii. Plead insufficient info 1. If not answered, it is considered admitted. c. Rule 8(c): Affirmative Defenses: i. 19 of them; must bring up in answer or they are waived. d. Rule 8(e): Permits inconsistent pleadings C. Amendments: 1. 15(a) As a matter of course: Lets party amend answer once before D’s answer is served to P (responsive pleading) or, if it’s not on the trial calendar, then up to 20 days after service. If you originally forget a claim/defense, but amend properly, the claim/defense won’t be waived d. Leave to amend (permission): If you can’t amend as a matter of course, you can ask for permission and it shall be freely given when justice so requires or party may consent to it. 2. 15(b) Amending to conform to the evidence: If issue was not raised but the parties’ talk about it anyway it may be let in 3. 15(c) Relating back documents: For SOL purposes, when an event arose from the same series of transactions or occurrences set forth in the original pleading, it may relate back. 4. 15(d) Supplemental pleadings: Where relevant activity occurs after the pleadings was filed.
D. Rule 11 Sanctions: 1. All pleadings, motions and other papers shall be signed by at least one atty or party if self-represented, who is taking responsibility for the contents of the papers along w/ his address and phone #. 2. The signature is saying that best to the person’s knowledge, formed after an inquiry reasonable under the circumstances: a. The claim isn’t being presented for an improper purpose b. Claim and defenses aren’t frivolous and are supported by law c. The facts and/or denials have supporting evidence 3. Rule 11 violation may be brought in 2 ways a. By motion: Filed separate from other motions, shall describe the specific conduct which violated Rule 11. It shall be served on the opposing party BUT NOT filed w/ the ct until 21 days after service of the motion. i. Safe harbor provision: This gives the other side 21 days to w/draw or correct their mistake. b. Court’s own initiative: No safe harbor provision i. 11(c)(2): In show cause situations, fees & expenses may not be awarded to the other side b/c they didn’t do anything to deserve it. 4. What type of sanction for a violation: a. Atty fees b. Dismissal of claim c. Payment to ct i. Monetary sanctions can’t be awarded against represented party for law. ii. If violation, ct may sanction atty, firm or party responsible for the violation.
VII. Waiving Service (Rule 4d) A. The P may notify the D of the commencement of the lawsuit and request by using FORMS 1A or 1B B. For a waiver request to be valid, a P must: 1. Request waiver in writing, addressed to D 2. Sent first class or reliable means 3. W/ copy of complaint stating ct that it has been filed in 4. Inform D of the consequences of waiving or refusing to waive service
a. If D doesn’t waive: he’ll have to pay service w/ cost, including reasonable atty fees of any motion to collect cost of service, unless he has a good reason for not waiving b. If D does waive: he will get 60 days (from the day request was SENT) instead of the usual 20 to file an answer or pre-answer motion. 5. Must have the date request was sent 6. Allow the D a reasonable time to return waiver, at least 30 days from the day the request for waiver was sent 7. Provide D w/ an extra copy of the notice and request, and prepaid means of compliance
VIII. Erie A. Is there a conflict between federal and state law or statue? 1. If no conflict, apply them both 2. If there is a conflict, is it a federal rule (Hanna) or a federal statue (Stewart) B. If it is a federal rule, the rule controls unless it violates: 1. Rule enabling act 2. US constitution C. If it is a federal statue: 1. Is the statute broad enough to cover this? 2. Does it violate the Constitution? a. If not, apply federal statue D. If no federal rule or statute but there is a conflict between federal and state practice: 1. Is this an issue that is outcome determinative? a. If not, apply federal law b/c it will be procedural, not substantive. 2. If yes, is it outcome determinative in a way that it violates one of the twin aims of Erie? a. Prevent forum shopping b. Prevent inequitable administration of laws i. If no twin aims violation, federal law applies 3. If yes, is there an important federal interest despite being outcome determinative and violating the twin aims? Federal housekeeping rules like paper size are important enough. (Byrd balancing test) a. Yes, federal law applies b. No, state law applies if the state has some interest